A biologically male transgender athlete, who is at the center of a Supreme Court case over West Virginia‘s law barring biological men from women’s sports, placed near the top of two events at the state’s recent high school track championship for girls, West Virginia’s attorney general said, contrary to past claims the athlete’s lawyers made about the athlete’s lackluster performances in girls’ track events.
In the pending Supreme Court case West Virginia v. B.P.J., the justices are set to rule on whether West Virginia’s Save Women’s Sports Act, which bars biological men from competing in women’s sports, violates either the equal protection clause or Title IX. As the high court continues to pen its ruling on the case behind closed doors, West Virginia Attorney General John B. McCuskey filed a letter to the Supreme Court detailing how Becky Pepper-Jackson, the biological male who identifies as a woman at the center of the case, performed in the recent West Virginia Secondary School Activities Commission’s Track & Field Championships.
The letter from McCuskey’s office noted the biological male finished in fourth place in the Class AAA women’s discus event and won the Class AAA state championship in women’s shot put. The letter noted that Pepper-Jackson, identified in court filings as “B.P.J.,” “outthrew the nearest competitor in shot put by more than 5% (11.88 m to 11.25 m).” The state championship results, combined with other recent high finishes for Pepper-Jackson, are at odds with Pepper-Jackson’s lawyers’ previous claims understating the transgender athlete’s performance in girls’ events.
“As a high-school sophomore, B.P.J. is not finishing ‘near the back of the back,’ but is instead defeating every — or nearly every — female in the State in these events,” West Virginia Solicitor General Michael Williams said in the letter from McCuskey’s office to the high court. “I would appreciate it if you could circulate this letter to Members of the Court.”
In the brief filed to the high court ahead of January’s oral arguments, Pepper-Jackson’s lawyers claimed that in cross-country events in middle school, Pepper-Jackson “routinely placed near the back of the pack.” The brief did note that in field events, such as shot put and discus, Pepper-Jackson “improved enough” to “participate in post-season events where [Pepper-Jackson’s] performance is well within the range of [biological] girls her age.”
During January oral arguments, Joshua Block, the lawyer for Pepper-Jackson, again emphasized that Pepper-Jackson finished “near the back” of a middle school cross-country team where every participating athlete made the cut. Justice Brett Kavanaugh then grilled Block about whether he would make the same arguments if the team did have cuts, and Block answered by noting that “girls don’t make the team when competing against other [biological] girls all the time,” implying that an athletically-advantaged biological boy making the team over a girl would present no separate ethical or legal issue.
The Supreme Court spent much of the January oral arguments grappling with the biological advantage men tend to have over women in sports, and whether there is validity to claims that a man’s biological advantage can be suppressed by hormone drugs.
The high court heard arguments in the West Virginia case, along with another case about a state law barring biological men from women’s sports in Little v. Hecox. The Supreme Court heard arguments in both cases back-to-back and has yet to rule on either case.
A ruling in both cases, which is set to have massive ramifications for women’s sports nationally, is expected by the end of June but could come as soon as Thursday, when the Supreme Court is set to issue at least one opinion for any of the 30 remaining cases it heard this term.