A federal judge in West Virginia upheld a state law that prohibits biological male student-athletes who identify and present as female from playing on girls’ school sports teams.

Judge Joseph R. Goodwin of the Southern District of West Virginia ruled Thursday that HB 3293, the «Save Women’s Sports Bill,» which defines «girl» and «woman» as biologically female for the purposes of of high school sports, is «constitutionally permissible.» The court found that West Virginia’s definition of «biological sex» for school sports is «substantially related to its significant interest in providing equal athletic opportunity for women.»

«I have no doubt that HB 3293 was intended to politicize participation in school athletics for transgender students,» Goodwin wrote. «However, there is not a sufficient record of legislative animosity. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important governmental interest.»

The law, introduced in March 2021, is one of several recent attempts by Republican-controlled state legislatures to ban transgender student-athletes from competing against members of the opposite sex. Critics say such efforts are hateful, discriminatory and even harmful to transgender youth. Supporters counter that male and female biological differences make physical competition between transgender athletes and girls unfair and may deny opportunities to women.

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West Virginia Governor Jim Justice signed the Save Women’s Sports Act into law on April 29, 2021.
(Reuters)

The «Save Women’s Sports Bill» was challenged by the American Civil Liberties Union, representing Becky Pepper-Jackson, a transgender high school student who was banned from joining the women’s cross country team. The ACLU argued that the law violated Pepper Jackson’s rights under the Equal Protection Clause of the 14th Amendment and Title IX, a federal statute that prohibits discrimination on the basis of sex.

Goodwin agreed that the law was designed to «prevent transgender girls from playing on women’s sports teams» but said this was legally permissible if there was substantial government interest in doing so.

She declined to define the terms «girl» or «woman», writing: «Courts are not required to create such definitions, and I would be hard pressed to find many other contexts in which a person’s sex and gender are relevant legislative considerations. «. However, she pointed out the biological differences between men and women that are relevant in athletic competition.

«While some women may outperform some men, it is generally accepted that, on average, men outperform women athletically due to the inherent physical differences between the sexes. This is not an overly broad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes,» Goodwin wrote.

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A protester expresses his support for the promotion of transgender ideology in schools during a march in favor of transgender people.
(Mark Kerrison/In pictures via Getty Images)

From left to right, Chelsea Mitchell, Selina Soule and Alanna Smith, three former Connecticut high school track athletes, listen during an «Our Bodies, Our Sports» rally for the 50th anniversary of Title IX at Freedom Plaza on May 23. June 2022, in Washington DC
(Anna Moneymaker/Getty Images)

Although Pepper-Jackson has taken puberty blockers, Goodwin noted, «there is much debate about whether and to what extent post-pubertal hormone therapies may reduce a transgender girl’s athletic advantage over cisgender girls.» She also noted that some transgender people can only transition socially, not medically or physically.

«However, the fact remains that a transgender girl is biologically masculine and, barring medical intervention, would go through male puberty like other biological men. And biological men generally outperform women athletically. The state can legislate sports rules about this basis because gender, and the physical characteristics that derive from it, are substantially related to athletic performance and equity in sports,» he said.

The ACLU of West Virginia said it was reviewing the decision with co-counsel to determine next steps. The ban applies to middle and high schools, as well as universities.

The decision was welcomed by West Virginia Attorney General Patrick Morrisey, who defended the law in court.

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University of Pennsylvania swimmer Lia Thomas, who is transgender, and Kentucky swimmer Riley Gaines, right, react after finishing tied for fifth in the 200 freestyle finals at the Swimming Championships and NCAA Diving on March 18, 2022 at the McAuley Aquatic Center in Atlanta.
(Rich von Biberstein/Icon Sportswire via Getty Images)

«This is not just about simple biology, but about equity for women’s sports, plain and simple,» Morrisey said in a statement. «Opportunities for girls and women on the field are precious and we must safeguard that future. Protecting these opportunities is important, because when biological men compete in a women’s event, women and girls miss out on the chance to shine.»

The West Virginia High School Activities Commission, which oversees school sports, said in 2021, when the lawsuit was filed, that it had not received any complaints about transgender athletes on women’s teams.

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A 2017 study by the Williams Institute at UCLA School of Law used statewide population-based surveys to estimate that West Virginia had the highest percentage (1.04%) of residents ages 13-17 among all states that identified as transgender. That equated to about 1,150 teens.

Associated Press contributed to this report.