Becky Pepper-Jackson, 13, a transgender teen at the center of a legal battle over transgender participation in West Virginia sports, after a hearing in Richmond, Va., on Friday. Shuran Huang for NBC News
Becky Pepper-Jackson, 13, sat in a courtroom Friday morning while lawyers argued over a law in her home state of West Virginia that would ban her from running on the girls’ cross-country and track teams at her middle school.
The hearing in front of the 4th Circuit Court of Appeals was the most recent update in her more than two-year legal battle, which began in May 2021, when she was 11, a month after West Virginia Gov. Jim Justice signed a bill that bars transgender girls from playing on girls sports teams in middle school, high school and college.
The appeals court will decide whether the law will take effect, and its decision could also start a chain of events that could land Becky’s case in front of the U.S. Supreme Court.
Becky has been allowed to run on her school’s cross country team and throw discus and shot put on the track and field team since the appeals court reinstated a previous injunction against the law in February. The state of West Virginia appealed that verdict to the Supreme Court, which in April rejected reinstating the ban during the lawsuit.
Becky’s mom, Heather, said Becky will often stay late at track and field practice. Sometimes she’ll even practice discus and shot put in their backyard in the rain.
“She likes to do the best in everything, be it algebra or running or shot put or discus,” Heather said. “She tries to excel in everything that she does, just like any other kid.”
Becky said she’s continued her fight after all this time because she loves playing sports.
“I want to keep going because this is something I love to do, and I’m not just going to give it up,” she said. “This is something I truly love, and I’m not going to give up for anything.”
‘It shouldn’t be that hard to be a kid’
Running has always been a family sport for Becky. She has run with her mom and her two brothers since she was a small child, though her running routine has changed slightly since one of her brothers went to high school and Heather is waiting on a knee replacement.
In the meantime, Becky, who is in eighth grade, has thrown herself into discus and shot put. She said she does two types of training for it. Sometimes, she works on her form while throwing lighter or bigger discs or spheres. Most of the time, she said she and her teammates go into what’s called “the pit,” and they get to throw with the high school students. She said she likes how discus and shot put are “polar opposites.”
“With shot put, it’s more like just throw it really hard and hope for the best. You have to be really aggressive,” Becky said. “But in discus, it’s very graceful and all about speed instead, which is what I like best about it.”
West Virginia was among the first states to restrict some or all trans student athletes from playing on school sports teams consistent with their gender identities. Just days after Justice signed the bill in April 2021, he was unable to provide an example of a trans student athlete in the state trying to gain an unfair advantage.
Rather, Justice relied on his experience as a sports coach to justify the law. “I coach a girls’ basketball team, and I can tell you that we all know what an absolute advantage boys would have playing against girls,” he told MSNBC anchor Stephanie Ruhle at the time.
Heather said she and Becky decided to file the lawsuit because, “if she didn’t start the fight, who’s going to?”
She said their lives haven’t changed much over the last two years, though they are more aware of their surroundings when they’re out in public, since their photos are online and some people might recognize them.
“At school, her friends still treat her exactly the same, her teachers treat her exactly the same,” Heather said. “She’s just a regular kid that just wants to play, so that hasn’t changed at all.”
Ahead of the hearing Friday, Heather said they were hoping for the best and preparing for the worst.
“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.
Regardless of how the court decides, an appeal is almost guaranteed. Whichever party does appeal will have the opportunity to appeal to the entire 4th Circuit or to the Supreme Court. The ACLU is also litigating a similar law in Idaho and is awaiting a decision from the 9th Circuit Court of Appeals. Depending on the outcome, that case could also be appealed to the high court.
One of the 4th Circuit judges acknowledged the stakes of the outcome at the end of Friday’s hearing.
“I want to thank all counsel for their arguments today, realizing we’re probably only a waystation on the way to the Supreme Court,” Judge G. Steven Agee said.