Supreme Court could take first transgender sports case after appeal from West Virginia soccer player

Kaelan Deese

March 09, 02:35 PM March 09, 02:36 PM

A West Virginia soccer player's appeal to the Supreme Court could give the 6-3 conservative majority its first chance to weigh in on the contentious issue of transgender athletes in women's sports.

West Virginia State University soccer player Lainey Armistead and her counsel with the Alliance Defending Freedom on Thursday are slated to ask the highest court in the land to lift an appeals court injunction against the state's Save Women's Sports Act, which aims to ban biological male students who identify as women from participating in girls school sports teams.

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"We are now asking SCOTUS to vacate that unreasonable and incorrect injunction," West Virginia Attorney General Patrick Morrisey said during a press conference Thursday.

The law was passed in 2021 but was subject to litigation by the American Civil Liberties Union, which represented Becky Pepper-Jackson, a transgender middle school student who was blocked from participating with the girls cross-country team. The ACLU contends the law violated the 14th Amendment's equal protection clause and Title IX, a federal statute prohibiting sex-based discrimination.

A district court earlier this year ruled in favor of the West Virginia law, saying it was constitutional and consistent with Title IX, which shields against sex-based discrimination.

The ACLU appealed the decision to the U.S. Court of Appeals for the 4th Circuit and requested an injunction, meaning the law is currently halted while the lawsuit unfolds.

"We know that we should win on the merits. We know that the original district court judge put in place an injunction that ultimately changed his mind and agreed with us that the law is constitutional," Morrisey said, adding that's why the state and ADF believe the Supreme Court will "ultimately lift the injunction."

Armistead decided to become a party in the case on behalf of herself and other female athletes, saying the ACLU's defense of Pepper-Jackson threatens her ability to compete fairly.

"I never dreamed this would be an issue in West Virginia," Armistead said in a statement. "Whenever I heard about the Connecticut lawsuit or just the girls losing out, I was really devastated for them because I know how much work all these athletes have put into their individual sports."

The Connecticut lawsuit surrounded three high school female track and field athletes who sued the state after being forced to compete against a transgender woman and claimed to miss out on several scholarship opportunities, as well as athletic recognition awards. That lawsuit has been ongoing for five years and is still playing out in lower courts.

Morrisey said the appeal to the Supreme Court is expected to become finalized later this afternoon.

The Washington Examiner contacted the ADF and ACLU for a response.

'Deeply held beliefs': Colorado designer before Supreme Court says she cannot condone LGBT weddings

Kaelan Deese

November 26, 06:00 AM November 26, 06:04 AM

Custom website and graphic designer Lorie Smith doesn't want to be forced to create websites for same-sex weddings due to her Christian faith, an issue the Supreme Court will debate next month in a free speech case challenging Colorado's anti-discrimination law.

"I love working with people from all different walks of life. And I have clients who identify as LGBT," Smith told the Washington Examiner, saying her case isn't about outright refusing service to members of the LGBT community. "I just cannot create for every message."

Smith claims Colorado’s anti-discrimination law violates her right to free speech over same-sex marriages, which she contends are contrary to her sincerely held religious beliefs. While Smith has not had the chance to expand her services to include wedding webpages with her business, 303 Creative, due to the state law, she said she’s had aspirations to do so since she was young.

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"I want to create for weddings, but I can't because Colorado is censoring and compelling my speech and forcing me to create custom messages and expressions ... celebrating messages that violate my deeply held beliefs," Smith said.

The small business owner has been fighting to delve into the work for weddings for nearly six years but has been preempted by the state's Anti-Discrimination Act, the same law that was used against Masterpiece Cakeshop owner Jack Phillips in numerous lawsuits similar to Smith's case after he refused to create custom wedding cakes that celebrate same-sex unions.

However, some groups, such as the American Civil Liberties Union, believe Smith's choice to enter the public market should disallow her from refusing specific requests, even if the content defies her sincere Christian beliefs.

David Cole, the national legal director of the ACLU, attended a debate last month hosted by the legal group representing Smith, the Alliance Defending Freedom. Cole contended that Colorado's law only requires businesses to serve everyone and does not infringe on free speech, arguing Smith would be within her right to include a statement on her websites saying she disagrees with LGBT marriage, but she cannot refuse service to customers based on sexual orientation.

"You can’t say, 'I’m serving the public, but I’m not going to serve gay people,'" Cole said. "You can’t say, 'I’m going to provide a service to opposite-sex couples, but I won’t provide that same service to same-sex couples,’ because now you’re not open to the public."

The ADF's CEO and president, Kristen K. Waggoner, also partook in the debate and was questioned by Cole. The ACLU panelist contended that a ruling favoring Smith could allow a baker who is "racist" to refuse service of a birthday cake to a black family, noting that the "First Amendment protects racist beliefs as well."

But Waggoner rebuked Cole's argument in an interview with the Washington Examiner, contending that Smith is asking the high court for content-based exemptions and isn't refusing service based on a client's sexual orientation.

"Lori isn't selling hamburgers or cups of coffee. She's creating. She's a storyteller," Waggoner said.

The attorney said the ACLU is "disingenuously claiming" that a ruling favoring Smith would "take us back to truly despicable and ugly times in our nation's history, [when] people were denied access to essential goods and services based on who they were."

Asked what would become of Colorado's law if the Supreme Court granted Smith's request, Waggoner said "our hope" is that a win for Smith would uphold the First Amendment while allowing the law to remain in place.

"The problem isn't the law itself. It's how Colorado was applying the law to Lori and to other artists by trying to compel their expression, and that's simply not the way these public accommodation laws are meant to be enforced," Waggoner said, adding that a victory for Smith would also protect the rights of any LGBT artists from being compelled to create messages they might disagree with.

Smith attempted to overturn a lower court ruling when her counsel filed to the U.S. Court of Appeals for the 10th Circuit in 2017. A panel voted 2-1 that Colorado law states she must "work with all people regardless of ... sexual orientation."

In 2018, the Supreme Court gave a partial victory to cake baker Phillips, saying the Colorado Civil Rights Commission had acted with anti-religious bias against him. However, the court did not rule on the broader issue of whether a business can invoke religious objections to refuse service to LGBT clients.

Arguments over the case will be heard by the high court on Monday, Dec. 5. A decision in the case likely won't be posted for months and will likely come before June 2023.