Becky Pepper-Jackson, seen here with her mother, Heather Jackson, has been fighting West Virginia’s ban on transgender girls competing in girls and women’s sports since 2021. (Photo Courtesy of ACLU-WV)

CHARLESTON — West Virginia Attorney General J.B. McCuskey and his legal team are getting ready to defend the state’s law aimed at keeping transgender girls and women from competing with biological girls and women in public school and college athletics before the nation’s highest court.

The U.S. Supreme Court will hear oral arguments Tuesday for two cases involving Idaho and West Virginia banning transgender girls and women from secondary school and college girls and women’s athletic programs.

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

After the U.S. District Court for the Southern District of West Virginia allowed the law to be enforced, the U.S. Fourth Circuit Court of Appeals overruled that decision, preventing the law from being enforced while the case was pending. The Supreme Court rejected an effort by then-attorney general Patrick Morrisey to appeal that ruling barring enforcement of the law while the case was pending, preventing HB 3293 from being enforced.

Becky Pepper-Jackson, a 15-year-old Harrison County high school cross country and track athlete who has identified as a girl since third grade and takes puberty-blocking medication, filed a lawsuit against HB 3293 in May 2021 shortly after the law went into effect.

Attorneys for Pepper-Jackson — which include the ACLU-WV, Lambda Legal, and Cooley LLP — alleged that HB 3293 violated her federal Title IX rights, prohibiting the exclusion of students from education programs on the basis of sex, as well as her rights under the 14th Amendment to the U.S. Constitution.

Billy Wolfe, the communications director for the ACLU-WV, criticized McCuskey and the Attorney General’s Office Thursday afternoon for a series of social media posts focused on biological girls and women who were defeated in sporting events by transgender women, including Pepper-Jackson, who has placed in state track and field meets.

“The West Virginia Attorney General’s Office has posted about trans kids at least nine times over the past two days on Facebook alone,” Wolfe said. “As poisoned water pours from the taps in thousands of West Virginia homes and our infrastructure collapses, tax dollars are being spent on cyberbullying a single 15-year-old girl all in the name of defending a discriminatory law.”

During an interview Thursday at his offices at the State Capitol Building, McCuskey discussed his legal defense of the Save Women’s Sports Act for what will be his first appearance before the Supreme Court as attorney general.

McCuskey said West Virginia’s law is defensible because it does not ban anyone from being able to play secondary or collegiate sports and does not discriminate based on sex.

“What our state did was create a system that is rational, that is enforceable, and that accomplishes the goal that they set out to do, which is to make sure that women and girls — people who are born women — have the opportunities to participate in athletics against only people that share their immutable physical characteristics,” McCuskey said.

McCuskey said the Title IX arguments being made by Pepper-Jackson’s attorneys do not hold up. The nearly 54-year-old landmark civil rights law passed by Congress in 1972 prohibits sex-based discrimination in schools and colleges.

“(Pepper-Jackson) believes that the gender that she has chosen is what is the delineating factor as to whether or not Title IX protects her rights,” McCuskey said. “We are saying that sex is the thing that delineates what happens under Title IX. There is no doubt, and there is no argument, that (Pepper-Jackson) is a biological male. And thus, we believe our position actually supports the underlying purpose of Title IX and that their argument actually erodes it.”

According to a 2015 study by espnW and Ernst and Young, 80% of Fortune 500 female CEOs played high school or college sports in their early years.

“What we’ve seen over the last 50 years is that Title IX has worked,” McCuskey said. “We’ve created Title IX, and Title IX has done what it’s set out to do, and it’s continuing to do that, which is to equal the playing field between men and women as it relates to opportunities in athletics and academics, which then produces people who have these incredible leadership skills and the ability to understand failure and how to understand success.”

McCuskey said his two primary goals next Tuesday are to make the case to the justices of the U.S. Supreme Court that HB 3293 is constitutional and legal, and to provide guidance to other states that want to do similar laws like West Virginia’s and Idaho’s.

“The second part of our mission here is to ensure that any of the other states who want to pass these kinds of common sense laws are able to do so, and with confidence in knowing that their actions won’t be challenged to the ends of the earth in court, and they can act confidently that the Supreme Court will uphold what it is that they’re doing,” McCuskey said.