West Virginia Attorney General J.B. McCuskey is urging the U.S. Supreme Court to take up the state’s ongoing legal battle over its ban on transgender girls and women participating in female sports.
In a new filing submitted Tuesday, McCuskey’s office asked the court to reconsider West Virginia v. B.P.J., a case involving House Bill 3293, also known as the Save Women’s Sports Act. The law, passed in 2021, requires student-athletes in middle school, high school, and college to compete on teams that match their sex assigned at birth.
Context Behind the Request
The push to revisit the case follows the Supreme Court’s recent ruling in United States v. Skrmetti, which upheld Tennessee’s ban on gender-affirming medical care for minors. McCuskey said that decision strengthens West Virginia’s argument and underscores the need for clarity on the transgender sports issue.
“We have always been confident in the merits of our case,” said McCuskey. “The law is constitutional and complies with Title IX, protecting fairness and safety in girls’ and women’s sports.”
The Legal Back-and-Forth
The case centers around Becky Pepper-Jackson, a transgender middle school athlete who sued the state shortly after the Save Women’s Sports Act became law in 2021. A lower court initially allowed West Virginia to enforce the law, but the Fourth Circuit Court of Appeals reversed that decision, halting enforcement while the case continued.
The U.S. Supreme Court previously declined to review the Fourth Circuit’s ruling. However, West Virginia is now renewing its request, joined by 26 other states, arguing that the appeals court’s decision conflicts with federal law and creates confusion for public schools.
Why This Matters Now
According to the new filing, schools are caught in a legal bind: they face pressure to comply with both a federal executive order banning transgender athlete restrictions and the court ruling blocking West Virginia’s law.
“That puts schools in an impossible position,” the brief said. “They risk losing federal funding if they follow state law, but face legal consequences if they don’t.”
The supplemental brief also noted that the Skrmetti ruling didn’t address all the legal questions relevant to the West Virginia case, especially those involving Title IX protections and the definition of sex in school sports.
Looking Ahead
While the Supreme Court hasn’t yet agreed to hear the case, West Virginia’s appeal could be among the first major test cases to determine the legality of transgender participation in sex-segregated sports. Another similar case from Maine is also awaiting review.
Meanwhile, West Virginia has also passed Senate Bill 299, which further restricts gender-affirming medical care for minors, signaling the state’s broader stance on transgender-related legislation.
“We want to ensure fairness in athletics,” said McCuskey, “and we believe the Save Women’s Sports Act achieves that in line with constitutional and federal law.”
