A federal appeals court has overturned a West Virginia law that limits transgender athletes to playing only in categories that match their gender at birth, with the court claiming the law violates federal Title IX rules.

In Tuesday’s 2-1 ruling from the 4th U.S. Circuit Court of Appeals, two liberal judges outvoted the lone dissenter to invalidate the law banning transgender athletes born male from competing in school sports in categories for the gender with which they identify.

Writing for the majority, Judge Toby J. Heytens (appointed by Biden in 2021) maintained that for transgender athletes, “a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.”

“The defendants cannot expect that [plaintiff trans student Becky Pepper] will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy,” Heytens said in the opinion with which Obama appointed Judge Pamela A. Harris agreed.

Canadian cyclist Rachel McKinnon poses for a photograph before competing against the USA’s Dawn Orwick in their F35-39 Sprint Final during the 2019 UCI Track Cycling World Masters Championship in Manchester on October 19, 2019. (OLI SCARFF/AFP via Getty Images)


Judge G. Steven Agee, who was appointed by George W. Bush in 2008, was the sole dissenter on the three-judge panel.

“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” said ACLU West Virginia attorney Joshua Block, according to the Associated Press.

However, West Virginia Attorney General Patrick Morrisey vowed to keep fighting to implement the law.

“I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” Morrisey, a Republican, said. “We know the law is correct and will use every available tool to defend it.”

Lee University student-athlete Macy Petty speaks during an event celebrating the House of Representatives passing The Protection Of Women And Girls In Sports Act outside the U.S. Capitol on April 20, 2023, in Washington, DC. (Chip Somodevilla/Getty Images)

Tuesday’s ruling comes on the heels of several losses for the state in this case. In Feb. of 2023, a federal appeals court froze the implementation of the law signed in 2023 by Gov. Jim Justice. Then, in April of last year, the U.S. Supreme Court denied a request by the state to lift the Appeals Court’s ruling to halt the law.

West Virginia is one of 24 states that have moved to put limits on transgender athletes.

Other states with similar laws include Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Wyoming.

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