Court allows 2 transgender girls who sued Arizona to take part in girls' sports

Two transgender girls who sued the state of Arizona will get to play on girls’ teams, at least for the time being.

In a brief order Monday, the 9th Circuit Court of Appeals rejected separate bids by Republican legislative leaders and state schools chief Tom Horne to delay the effect of a federal judge’s order blocking the state from enforcing its 2022 ban on transgender girls playing with and against other girls.

That most immediately means the two girls will be able to participate in girls’ sports as this new school year begins — precisely what Horne, Senate President Warren Petersen and House Speaker Ben Toma had sought to prevent by seeking a stay of U.S. District Court Judge Jennifer Zipps’ order. The three elected officials argued to the appellate judges that, absent their intervention, one of the girls, an 11-year-old student at Kyrene Aprende Middle School, would participate in a cross-country competition on Monday.

The appellate judges turned down the requests for a delay and instead set a schedule for attorneys for the two sides to file legal briefs. That means the court will not consider their arguments until at least November, if not later.

Horne, reacting to Monday’s order, pointed out that, strictly speaking, the litigation affects only the two transgender girls, the one attending school in the Kyrene district in the Phoenix area and the other a 15-year-old student at The Gregory School in Tucson. While the Tucson school is a private school, it is affected by the 2022 state law because it participates in the Arizona Interscholastic Association, which allows its students to participate in interscholastic sports with other schools. The two girls’ bid to participate in girls’ sports was brought in federal court by the National Center for Lesbian Rights.

Horne told Capitol Media Services he is sure the legal fights won’t stop here.

“My view is that this is a first step towards letting males play in female sports in general,’’ said Horne, a Republican elected in November. “So this is a long-term fight. And I think it’s an important enough issue that we’ll win it in the U.S. Supreme Court.”

Petersen, a Gilbert Republican, was critical of the 9th Circuit’s refusal to step in and allow enforcement of the law.

“Bad rulings like this are just another reminder why the 9th Circuit is the most radical and overturned in the nation,’’ he said.

A spokesman for Toma, a Peoria Republican, said he is “disappointed’’ by Monday’s ruling and is evaluating his next steps.

The 2022 law 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.’’

In her ruling last month, Zipps rejected claims by Horne and the legislative leaders that it would be unfair to allow those who were born as males to participate against females. The judge said the evidence Horne presented claiming that prepubescent transgender girls are stronger does not hold up under scrutiny.

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Zipps also said the 2022 law violates Title IX, a federal law that bars discrimination based on sex in educational opportunities. She said it deprives transgender girls of “the benefits of sports programs and activities that their non-transgender classmates enjoy.’’

The judge also said the two girls who filed suit, who otherwise would be participating this new school year in sports, would suffer irreparable harm.

In seeking to stay the order, Horne argued the opposite. He said that allowing Jane Doe, the transgender girl in Kryene, to compete in cross-country events with other girls would not be fair to them.

“Unless Doe finishes the race behind every biological girl participating in the race, Doe’s participation will necessarily displace a biological girl from finishing in a higher-ranked position,’’ Horne argued. “Those biological girls will be irreparably harmed in the absence of a stay.’’

Petersen and Toma’s attorney argued that state legislators have the right to set public policy and adopt laws like the one challenged here.

“Permitting a single transgender-female athlete to participate on girls’ teams permits and prolongs a continuing violation of law,’’ wrote their attorney, John Sauer.

“The act, as a duly enacted law adopted by Arizona’s elected representatives, is itself a clear and authoritative declaration of the public interest in Arizona,’’ he continued. “The district court erred by disregarding these public interests.’’

In her extensive ruling last month, Zipps noted that children are “assigned’’ a sex at birth that generally matches physiology. But the judge said that is different than “gender identity.’’

“For a transgender person, that initial designation does not match the person’s gender identity,’’ Zipps said. She also said “gender dysphoria’’ — distress due to incongruence between the person’s gender identity and assigned sex — is highly treatable.

“Attempts to ‘cure’ transgender individuals by forcing their gender identity into alignment with their birth sex are harmful and ineffective,’’ Zipps wrote. She said efforts like the 2022 law to deny transgender girls the opportunity to participate in sports with other girls can be harmful, citing high rates of attempted suicide in the transgender community.