(LifeSiteNews) — The U.S. 4th Circuit Court of Appeals ruled 2-1 Wednesday that a West Virginia law keeping biological males out of women’s and girls’ sports constitutes sex-based discrimination under the 1964 Civil Rights Act, although so far the ruling does not bar enforcement beyond the specific parties of the lawsuit.
In July 2021, the American Civil Liberties Union’s (ACLU’s) West Virginia chapter, along with LGBT legal group Lambda Legal and the Cooley Law Firm, filed a lawsuit on behalf of a gender-confused 11-year-old boy identified as “Becky” Pepper-Jackson after officials at his school cited the law to exclude him from a girls’ cross country running program.
The 4th Circuit issued an injunction against the law last year after lower courts issued dueling decisions on whether it could be enforced.
“The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy,” Judge Toby Heytens wrote in this week’s ruling, the Associated Press reported.
“B.P.J. has shown that applying the act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex. That is all Title IX requires,” he added.
Judge G. Steven Agee dissented, arguing that the majority opinion “turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception (…) B.P.J. displaced at least 100 biological girls at track-and-field events and pushed multiple girls out of the top 10. Similarly, by making the conference championships in two events (something reserved for the top three girls on a team), B.P.J. took away at least two biological girls’ opportunities to participate in the conference championships. And this was in a single season. Thanks to the new-found rubric of today’s majority opinion, such displacement will become commonplace.”
“I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” West Virginia Attorney General Patrick Morrisey reacted. “We know the law is correct and will use every available tool to defend it.”
Alliance Defending Freedom attorney Rachel Rouleau panned the ruling as well, adding that her organization is “considering all legal options to protect women’s sports, including an appeal of this decision.”
Mandatory inclusion of gender-confused individuals in opposite-sex sports is promoted as a matter of “inclusivity,” but critics note that indulging “transgender” athletes undermines the original rational basis for having sex-specific athletics in the first place, thereby depriving female athletes of recognition and professional or academic opportunities as well as undermining female players’ basic safety and privacy rights by forcing them to share showers and changing areas with members of the opposite sex.
There have been numerous high-profile examples in recent years of men winning women’s competitions, and research affirms that physiology gives males distinct athletic advantages that cannot be fully negated by hormone suppression.
In a 2019 paper published by the Journal of Medical Ethics, New Zealand researchers found that “healthy young men (do) not lose significant muscle mass (or power) when their circulating testosterone levels were reduced to (below International Olympic Committee guidelines) for 20 weeks,” and “indirect effects of testosterone” on factors such as bone structure, lung volume, and heart size “will not be altered by hormone therapy;” therefore, “the advantage to transwomen (biological men) afforded by the (International Olympic Committee) guidelines is an intolerable unfairness.”
The U.S. Supreme Court’s Bostock decision, authored by Justice Neil Gorsuch, complicated the legal terrain on the issue in 2020 by ruling that “sex discrimination” in the Civil Rights Act should be interpreted to mean sexual orientation and gender identity in addition to its original biological meaning.
Such reasoning flies in the face of both the plain statutory meaning of “sex” in 1964 and the clear legislative intent of the lawmakers who drafted and passed the Civil Rights Act, argues ADF senior counsel John Bursch. “There is little dispute that, in 1964, the term ‘sex’ was publicly understood, as it is now, to mean biological sex: male and female. After all, the term ‘gender identity’ wasn’t even part of the American lexicon at the time,” he said. “Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990.”