The top Republicans in the state Legislature can’t escape having to answer questions about their motives in promoting and voting in 2022 to ban transgender girls from participating in girls’ sports at school.
Without comment, U.S. Supreme Court Justice Elena Kagan rebuffed claims by Senate President Warren Petersen and House Speaker Ben Toma that the information is protected by legislative privilege and that forcing them to submit to depositions for those challenging the law would result in irreparable harm. Lagan is the duty justice for this area of the country.
But while Kagan did not explain her decision, it falls in line with lower court rulings that Petersen and Toma, having voluntarily made themselves parties to the case to defend the law — only state schools chief Tom Horne was initially sued — cannot now shield themselves from questioning.
The new ruling from the nation’s highest court leaves the pair with no choice but to answer the questions. Their prior efforts to avoid that were rejected, first by a trial judge and, more recently, by the 9th Circuit Court of Appeals.
The ruling is a clear victory for the parents of transgender girls who challenged the law. Those girls have, for the moment, been allowed to participate in sports while the case makes its way through the legal system.
They are arguing that the statute violates the Equal Protection Clause of the U.S. Constitution. One element of such claims is whether legislators “acted with discriminatory intent.”
The order means not just that Petersen and Toma have to answer questions about their own reasons for supporting the legislation, but also must surrender documents about the law’s enactment — including one that the trial judge said has “talking points” about the statute.
Petersen was clearly miffed at the decision. “Do you think we should be able to be deposed for eight hours on every bill we vote on?” the Gilbert Republican commented.
That ignores the fact that the ruling was based not on their approval of the law, but on the fact they sought to become parties to the lawsuit to defend it.
Even with the new ruling, Petersen said interceding in the pending case was “not a mistake.”
There was no immediate response from Toma.
The statute, dubbed the Save Women’s Sports Act, requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. It specifically says teams designated for women or girls “may not be open to students of the male sex.”
Proponents said males have an inherent biological advantage.
The parents of two transgender girls filed suit against Horne.
One of the girls was set to attend Kyrene Aprende Middle School and wanted to try out for girls’ soccer and other teams. Her lawyers said the student has “lived her life as a girl” since age 5.
The other is a student attending The Gregory School, a private school in Tucson, who was 15 when the lawsuit was filed. The lawyers said that student has been on puberty-blocking medication since age 11.
Last year U.S. District Court Judge Jennifer Zipps gave the go-ahead for only these two transgender girls, for now, to participate in girls’ sports, ruling the state law precluding that violates Title IX, the federal law that bars discrimination based on sex in educational opportunities.
That is just a preliminary injunction
Now the case is set to determine whether to make that order permanent. That’s where the questioning of Toma and Petersen becomes relevant.
Attorney General Kris Mayes, whose office normally represents the Arizona Department of Education, declined to defend the law, saying her views did not align with those of Horne. She did allow him to hire his own attorney.
Toma and Petersen insisted in joining the lawsuit to defend the law, saying in a legal filing that Mayes’ refusal to defend the constitutionality of the law means “the existing parties do not adequately represent the legislative leaders’ interests.”
No date for a trial has been set.
Before the 2022 law, the Arizona Interscholastic Association, which governs high school sports, already had protocols to handle requests by transgender athletes to participate in sports on a case-by-case basis. Factors included a student’s “gender story,” including the age at which they became aware of the “incongruence” between the sex assigned at birth and gender identity, and whether the student is undergoing gender transition.
Dr. Kristina Wilson, who was on the AIA’s medical advisory board, testified that out of 170,000 high school athletes there had been just 16 requests by transgender individuals to compete.
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