“We don’t like to be in the spotlight,” Heather said. “We’re just country people from West Virginia, so it’s a little overwhelming. I’m nervous for her, because I know what joy she gets from doing her sports, and every kid needs sports. It’s just a moral foundation they need to get. They learn responsibility, they learn camaraderie, they learn that people depend on them. And I see how much fun she has.”
In the last three years, 23 states in addition to West Virginia have passed similar restrictions on trans student athletes, with many of their supporters making arguments similar to Justice — that trans girls have an inherent advantage over cisgender girls, or those who aren’t transgender. Courts have temporarily blocked laws in West Virginia, Idaho and Arizona. A court has also permanently blocked Montana’s law as it applies to colleges, but not for K-12 schools.
Becky said it’s been “disappointing” to watch state after state pass trans athlete restrictions during her lawsuit. Heather said she gets upset “because it seems to be the issue du jour.”
“Politicians are out there fighting for votes, and they just jump on a bandwagon without ever researching it for themselves, when if people would just do their own research, the biology and the science is out there to prove what we’re looking for,” Heather said. “We just want to be accepted, and she just wants to be a kid. It shouldn’t be that hard to be a kid.”
An ‘equal and fair playing field’
The American Civil Liberties Union and Lambda Legal, which are representing Becky, argue that West Virginia’s law is discriminatory and violates Title IX, a federal law that protects students from sex-based discrimination, and the equal protection clause of the 14th Amendment.
During Friday’s hearing in front of the 4th Circuit, Becky’s lawyer, Joshua Block of the ACLU, said Becky has received puberty-blocking medication, which has prevented her from going through testosterone-driven puberty and receiving any potential physical advantage. West Virginia’s law, he argued, “goes out of its way to select criteria that do not create athletic advantage but do a perfect job of accomplishing the function of excluding transgender students based on their transgender status.”
The law “could have been drafted to actually adopt criteria that are relevant to athletic performance, but it doesn’t,” Block argued. “It picks criteria that define being transgender.”
Lindsay See, the solicitor general for West Virginia, argued that the district court, in ruling in favor of the law, “got it right that sports is a uniquely strong case for differences rooted in biology and call for sex-based distinctions to help ensure an equal and fair playing field.”
See also noted that experts for both the state and the plaintiff established that there is at least a slight inherent physical difference between trans girls and cisgender girls even prior to puberty. This, See argued, justifies the law. However, Block argued in rebuttal that the state’s expert conceded that any differences before puberty are “minimal.”
Block estimated that the court could release its decision in the next three to six months.
“We really hope that the judges were able to recognize this for what it was, which was discrimination against trans girls solely based on the fact that they’re trans,” he said in a phone call after Friday’s hearing.