Morrisey to appeal transgender athlete law decision to U.S. Supreme Court

CHARLESTON — After being handed a defeat last week by a federal appeals court panel, Attorney General Patrick Morrisey said Wednesday he would defend West Virginia’s law banning transgender girls and women from playing in biological female sports to the nation’s highest court.

In a press conference Wednesday afternoon at the State Capitol Building with state lawmakers and advocates for biological girls and women, Morrisey said he would appeal a decision last week by a three-judge panel of the U.S. Fourth Circuit Court of Appeals allowing a Bridgeport Middle School student — a transgender girl — from participating in her school’s girls middle school track team.

“We’re going to go to the U.S. Supreme Court to seek to overturn the divided 2-1 Fourth Circuit Court of Appeals decision that sustained a challenge to the Women’s Sports Act,” Morrisey said. “We will be filing over the next month, and we want to make sure to time our filing to maximize the chance that this case will be heard and — most importantly — that we will win.”

In a 2-1 decision on April 16, the fourth circuit panel blocked enforcement of House Bill 3293, relating to single-sex participation in interscholastic athletic events, when it comes to Becky Pepper-Jackson, a 13-year-old girl who has identified as a girl since third grade and takes puberty-blocking medication.

House Bill 3293, passed by the West Virginia Legislature in 2021 and since called the “Save Women’s Sports Act” by Morrisey, requires student-athletes in middle school, high school or college to participate in sports that match their biological sex based on the student’s sex at the time of their birth. The law applies to sports regulated by the NCAA and other college interscholastic organizations.

Pepper-Jackson and her mother Heather Jackson filed a lawsuit against HB 3292 in May 2021 shortly after the law went into effect. They are represented by Lambda Legal, the state and national chapters of the American Civil Liberties Union, and law firm Cooley LLP. At the time, Pepper-Jackson had planned to participate in her middle school’s track and cross country teams.

The case found its way to the fourth circuit and the U.S. Supreme Court before. After a lower court allowed the law to be enforced, the fourth circuit overruled that decision, preventing the law from being enforced while the case was pending. The U.S. Supreme Court rejected an effort by Morrisey to appeal the fourth circuit decision, preventing HB 3293 from being enforced.

“This is one of the most important cases my office has handled over the past 12 years,” Morrisey said. “We are vigorously defending the law, and it is reasonable. It is based on biology and it is based on fairness. We are working to defend the integrity of women’s sports. We must protect our young women. Opportunities for women and girls, they’re precious and we have to take advantage of every one of them”

Fairness West Virginia, an LGBTQ advocacy organization, released a statement following Morrisey’s press conference. Fairness West Virginia Communications Director Jack Jarvis said Morrisey’s rhetoric was creating a hostile environment for the state’s transgender minority.

“Let’s be clear about what happened today. Patrick Morrisey told West Virginians that the most important case he’s worked on as Attorney General — the most pressing issue facing our state — is whether or not one 13-year-old transgender girl is allowed to participate in her middle school’s cross country team,” Jarvis said. “Instead of winning support from the voters with real ideas for a brighter future for our state, he’s trying to scare voters and demonize children.”

Morrisey was joined by Riley Gaines, a former college student-athlete and the ambassador for Independent Women’s Voice, a conservative advocacy group that advocates on behalf of biological women. Earlier Wednesday, Morrisey — a Republican candidate for governor of West Virginia — joined Gaines at the Charleston Marriott for a ceremonial signing of a pledge to “support legislation that preserves female opportunities and private spaces.”

Gaines, a swimmer at the University of Kentucky, made headlines in 2022 after competing against Lia Thomas, a transgender woman who was on the University of Pennsylvania’s swim team. Gaines is one of several college athletes suing the NCAA over its policies regarding transgender athletes.

“I’m just here to show you why this matters; to bring life to the issue,” Gaines said. “In addition to losing trophies to Thomas, we also had to share a locker room and change in front of the 6-foot-4 fully-intact naked male…we were not asked for our consent as women to be exposed to a naked male while also simultaneously being exploited to this naked male, and we did not give our consent to this arrangement.”

Gaines recently brought attention to a track competition in Harrison County last week, where video shows five students from Lincoln Middle School refusing to throw shot put against Pepper-Jackson in protest. Several of the girls were in attendance at Morrisey’s press conference Wednesday, including 14-year-old Emmy Salerno.

“I started to think that this can’t be right. All of my teammates are working so hard to be beat by a boy,” Salerno said. “Don’t get me wrong, we’ve had some great girls on our team that have beaten this boy. But now into this year, all of my teammates have seen how much he has improved since last year. This made me feel like I had to do something; not just for myself, but for girls everywhere.”

Gaines attended the 2024 legislative session and appeared at a press conference in January with Gov. Jim Justice in support of House Bill 5243, creating the Women’s Bill of Rights Act. The bill passed the House but never made it out of the 60-day session.

HB 5243 would have defined sex-based terms in State Code for “woman,” “girl” and “mother” to refer to biological females with narrow exceptions. It also would have prohibited the unfair treatment of males and females and allowed the provision of separate single-sex living facilities, locker rooms, bathrooms, domestic violence shelters and rape crisis centers based on biological sex.”

According to the UCLA Williams Institute, approximately 700 children between the ages of 13 and 17 identified as transgender in West Virginia in 2022, or approximately .7% of the state’s population in that age range. House Bill 2007, passed in 2023, prohibits physicians in the state from providing irreversible gender reassignment surgery or medication for gender-affirming care, such as hormones or puberty blockers, to a person who is under 18 with certain exceptions.

However, Republican candidates for governor in the May primary have used perceived concerns about the transgender community against each other. Huntington businessman Chris Miller has ads accusing Morrisey in his past work as a lobbyist of representing a New York hospital that performs gender reassignment surgeries and pharmaceutical companies that manufacture and distribute medication for gender affirming care.

“When a leading provider of child sex changes sought taxpayer funding, they hired a D.C. lobbyist named Patrick Morrisey,” one Miller TV ad claimed. “Morrisey went to work advancing the interests of the woke trans movement.”

Secretary of State Mac Warner has issued several statements, including a new statement Wednesday, calling on Morrisey to recuse himself and step aside from the case, accusing Morrisey of a conflict of interest in regard to Morrisey’s past lobbying work.

“Patrick Morrisey says he wins a lot, but he lost a very important appeal before the Federal Fourth Circuit Court,” Warner said. “Patrick Morrisey is not capable of representing our daughters and granddaughters in this case. He should voluntarily step aside and allow competent legal counsel to defend the West Virginia law that was overwhelmingly passed by the WV Legislature and signed by Governor Justice.”

In response Wednesday, Morrisey said Warner and Miller are lying about his history as a lobbyist, stating he has never supported any pro-transgender policies.

“Politicians lie, and the politicians in this race are lying at the highest possible level,” Morrisey said. “I want to make it very clear … to everyone that I have never in my life worked to advance any of those policies. I think it is despicable what they’re doing and I think they should be ashamed of themselves, but this is what people do when they’re down in a race and behind.”


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