Federal court upholds state law protecting women’s sports

It’s only one court victory, and more legal battles almost certainly lie ahead over whether states should—if not must—let men compete in women’s sports.

Still, former West Virginia State University soccer player Lainey Armistead and the Alliance Defending Freedom scored a major triumph recently when a federal district court upheld West Virginia’s Save Women’s Sports Act. The law declares that “classifications based on gender identity serve no legitimate relationship to the state of West Virginia’s interest in promoting equal athletic opportunities for the female sex” and that “classifications of teams according to biological sex are necessary to promote equal athletic opportunities for the female sex.”

The federal court agreed.

“I’m so excited the court decided in favor of biological reality,” Armistead said. “I know from competing against men growing up that men are stronger, fitter, and faster, generally speaking, so I’m stoked that women’s sports in West Virginia are being protected.”

Federal courts have prohibited boys from playing on girls teams in the past. In those cases, boys typically wanted to play sports such as volleyball or field hockey for which their schools only had girls teams. If girls had to compete with boys for spots on interscholastic teams, courts said, their participation would end up being limited to cheerleading, warming the bench, or watching from the stands. 

More recently, boys and men who identify as girls and women have sought, and in some cases received, the opportunity to compete as members of their chosen gender. Athletes such as former University of Pennsylvania swimmer Lia (formerly William) Thomas and former track-and-field runner CeCe (formerly Craig) Telfer of New Hampshire’s Franklin Pierce University have proven why this is problematic: Thomas and Telfer were nowhere near among the nation’s best when competing against men in their respective sports. Competing against women, however, they both became NCAA champions—Thomas in the 500-yard freestyle in Division I last year; Telfer in the 400-meter hurdles in Division II in 2019.

For that reason, according to ADF attorney Christiana Kiefer, 18 states now have laws aimed at protecting women’s sports.

“You can see the real harm to women across the country from letting men compete against women,” said Kiefer, who represents Armistead, as well as female athletes from Connecticut, Idaho, and other states.

Courts typically haven’t seen it that way in recent years. A federal court in Idaho struck down a law similar to West Virginia’s in 2020. A challenge to that decision is pending before the 9th U.S. Circuit Court of Appeals in San Francisco, Kiefer said.

The U.S. Court of Appeals for the 2nd Circuit, meanwhile, recently upheld a Connecticut federal court’s decision denying a request to erase from the state’s high school track-and-field record books the times of two male athletes who competed as women. Terry Miller and Andraya Yearwood hold 15 Connecticut girls’ indoor and outdoor sprinting records between them.

In the Connecticut case, the 2nd Circuit held that because the athletes seeking the court order had graduated, they lacked standing to challenge the validity of their transgender counterparts’ records. The court conveniently ignored the fact that high-school athletic records often stand long after the athletes who set them have graduated—and those athletes deserve recognition for setting them.

“The court, frankly, got it wrong,” Kiefer said. “Records matter to athletes. It would have been appropriate to rewrite the record books.”

The loss in the Connecticut case made the victory in West Virginia all the sweeter for both Armistead and Kiefer. In the latter case, the athlete who challenged the West Virginia law admitted that circulating testosterone in males gives males a biological advantage in athletic performance.

“The fact is … that a transgender girl is biologically male and, barring medical intervention, would undergo puberty like other biological males,” the federal court in the West Virginia case wrote. “And biological males generally outperform females athletically. The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.”

Kiefer said the American Civil Liberties Union, which represented the athlete who challenged the West Virginia law, has not indicated whether it will appeal the federal court’s ruling.

Armistead is now attending law school in Florida.

“I wanted to go to law school before this case,” Armistead said. “But this case made me realize I want to stand up for people who need standing up for. It definitely made me realize I made the right decision.”

She hopes her future clients won’t have to include female athletes who don’t want to compete against men in the future.

“Women shouldn’t have to be bumped off the pedestal, lose scholarships, or worry about their safety to compete in sports,” Armistead said.