When Becky Pepper-Jackson entered middle school in 2021, she looked forward to trying out for the girls’ cross-country team that fall and later the track and field team because she comes from “a family of runners.” She was assigned male at birth but began transitioning to a female gender identity in 3rd grade, with solid support from her family and school.
“I just think I’m a girl and I shouldn’t have to run with the boys,” she said in a deposition. “I should be able to run with the girls ‘cause I am a girl.”
But that same year, West Virginia passed the Save Women’s Sports Act, a law that bars “biological males” from participating in female school sports based on “competitive skill or contact.”
The state was one of the first to adopt a law effectively barring transgender girls from such sports. Today, 27 states now have similar laws on their books, and the U.S. Supreme Court next week will take up its first case related to those policies—stemming in part from a 2021 lawsuit filed on Pepper-Jackson’s behalf to challenge West Virginia’s law.
“What this case is about is, are states allowed to draw distinctions between biological males and biological females in a space where their size, their speed, and their strength matters?” West Virginia Attorney General John B. McCuskey, a Republican, said in an online session with reporters this week. “And the answer to that question is absolutely, yes.”
In West Virginia v. B.P.J., the Supreme Court will take up the legality and constitutionality of the state’s law. It will also hear arguments in Little v. Hecox, involving a similar statute in Idaho challenged by a prospective female college athlete, Lindsay Hecox.
“The human and legal stakes are high,” Suzanne Goldberg, a Columbia University law professor who co-wrote a friend-of-the-court brief in support of Pepper-Jackson and Hecox, said in an interview. “These cases have implications that potentially go far beyond transgender kids and school sports.”
A changing national debate
Transgender issues in schools, over restroom and locker room use, names and pronouns, and sports, have been percolating for years. The Supreme Court is considering whether to take up the separate issue of how educators should inform and interact with parents when their children express a different gender identity at school.
Schools are in the middle of the debate over transgender sports participation, though eligibility rules are largely set in K-12 education by state school sports governing bodies, or the states themselves, while the NCAA sets the rules for college athletics.
Public sentiment intensified during last year’s presidential campaign, with public opinion showing strong opposition to transgender females’ participation. Then came President Donald Trump’s signing of an executive order in February titled “Keeping Men Out of Women’s Sports,” claiming that Title IX, the federal law that bars sex discrimination in federally funded schools and colleges, prohibits transgender girls from girls’ athletics and locker rooms.
Soon after, the NCAA and U.S. Olympic Committee pulled back from rules that permitted transgender women to compete in female events. The International Olympic Committee is expected to refine its policy on transgender participation soon.
Meanwhile, Pepper-Jackson, now a 15-year-old high school sophomore in West Virginia, is the face of the issue as her case arrives at the nation’s highest court.
Pepper-Jackson and her mother, Heather Jackson, challenged the West Virginia law as a violation of the 14th Amendment’s equal-protection clause and Title IX.
Her school system, the 9,300-student Harrison County district, was a nominal defendant, though it argued in court papers that it had no choice but to abide by the state law. The district has long provided a gender-support plan that, among other things, respects Pepper-Jackson’s chosen name and pronouns.
Pepper-Jackson won a preliminary injunction in 2022, blocking the West Virginia law, just as she was entering middle school. She began running cross country and was interested in track and field, though her running times were too slow to be competitive. Her coaches steered her instead toward discus and shot put, where she has thrived.
“As it turned out, I really loved” those events, Pepper-Jackson says in a short video produced by the American Civil Liberties Union, which represents her along with Lambda Legal.
But Pepper-Jackson has more than the 4 kilogram weight of the shot used in high school girls’ shot put on her shoulder as her case enters the nation’s highest legal arena.
“I feel very nervous, but I know that someone has to do it, because letting these awful laws and bills just stand is not something that should happen,” Pepper-Jackson says in the video. “I want other trans girls to know that they are not alone, and that I’m doing this for us. … I really want them to have hope.”
A question of ‘displacing’ cisgender athletes
Pepper-Jackson has plenty of supporters, but on the other side are the two states defending their laws, the Trump administration, cisgender female athletes who feel aggrieved by the participation of transgender girls and women in their sports, and conservative groups that have challenged transgender rights on multiple fronts.
“Gender ideology hurts everyone, and we should be respecting biology, biological reality, not denying it,” John J. Bursch, the vice president of appellate advocacy at Alliance Defending Freedom, the conservative legal organization that has been battling transgender rights for years and is assisting both Idaho and West Virginia in the high court, said in an interview. “When we use the fiction that [Pepper-Jackson] and Hecox are female athletes because they say that they are, it eliminates any reasonable way to talk about the case, which is male athletes who identify as women or girls competing in women’s sports.”
McCuskey, the West Virginia attorney general, said, “male athletes identifying as female are increasingly competing in women’s sports, erasing the opportunities Title IX ensured. Women and girls have lost places on sports teams, surrendered spots on championship podiums, and suffered injuries competing against bigger, faster, and stronger males.”
Bursch’s organization has represented a number of cisgender girls who claim they have been wrongfully denied championships, medals, and other recognition due to the participation of transgender girls in their sports.
Pepper-Jackson’s participation has “displaced” 423 girls on 1,100 separate occasions by finishing ahead of them.
“It takes opportunities away from girls,” Bursch said.
Joshua A. Block, a senior counsel with the ACLU who will argue on behalf of Pepper-Jackson, said it was wrong to view Pepper-Jackson as displacing cisgender girls, “because she did not finish dead last every time.”
Pepper-Jackson has received puberty-delaying medication and gender-affirming estrogen that allowed her to undergo a hormonal puberty typical of girls, and she has never experienced elevated testosterone or physiological changes typical of male puberty, Block said.
The two sides sharply dispute the science over whether transgender girls who do not go through male puberty still have athletic advantages over cisgender girls.
The U.S. Court of Appeals for the 4th Circuit in Richmond, Va., in 2024 sent Pepper-Jackson’s 14th Amendment equal-protection claim back to a federal district court for further consideration of that factual dispute.
The 4th Circuit ruled for Pepper-Jackson on her Title IX claim, holding that discrimination against transgender students is discrimination “on the basis of sex” under the federal statute—a reading of the law at odds with the Trump administration.
The court said that “offering [Pepper-Jackson] a ‘choice’ between not participating in sports and participating only on boys’ teams is no real choice at all.”
West Virginia appealed the decision to the Supreme Court, asking the justices to uphold its law under both Title IX and the equal-protection clause.
Procedural questions around Idaho case
The Idaho case involves the state’s 2020 Fairness in Women’s Sports Act, which was challenged by Hecox, a transgender female who aspired to join the track team at Boise State University.
A panel of the U.S. Court of Appeals for the 9th Circuit in 2024 upheld an injunction blocking the law as it applied to Hecox. The panel said the law likely violates the Equal Protection Clause, but it didn’t rule on a claim that it also violates Title IX.
In September, Hecox’s lawyers informed the Supreme Court that she had voluntarily dismissed her case in the lower courts amid “significant challenges” that have included failure to make athletic teams at her college. Her lawyers agreed that the underlying 9th Circuit judgment in favor of Hecox should be set aside, and she asked the Supreme Court to dismiss its review of her case.
Idaho opposed the motion, and the high court said it would defer a decision on Hecox’s request until after the Jan. 13 oral arguments.
The ACLU’s Block acknowledged that he faces an uphill fight given the political context surrounding transgender rights in the country and the Supreme Court.
Last June, in United States v. Skrmetti, the justices upheld a Tennessee law barring certain gender-transition medical treatments for transgender minors. In May, the court declined to block the Trump administration from reinstating a ban on transgender people in the military, and in November, the court said the administration was likely to succeed in a challenge to its policy of requiring all new passports to display an individual’s “biological sex at birth.”
“It’s no secret that the past two years have been really devastating in terms of the rights of trans folks,” Block said. “There have been a lot of attempts to roll back equality and roll back health care that had never before been previously politicized in that way.”
“We’re going to be pushing back against efforts to try to use this case as a vehicle for dismantling the rights of transgender people,” he said.
Heather Jackson appeared with her daughter in another video the ACLU released this week.
“We want Becky to have the same freedoms and opportunities as her peers,” Jackson said. “I know not everyone agrees with us or understands what life is like for families like ours, and that’s OK. But I would ask you to imagine, what if it was your child being targeted by politicians in your state? … Becky’s not trying to get a leg up on anyone or demand special treatment. She wants and deserves the same opportunities as any other girl in her school.”
2026-01-09 17:32:07
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