PHOENIX — Arizona’s schools chief says a judge should throw out a bid by two transgender girls to void a new state law prohibiting them from playing on teams designated for girls.
In a new court filing, Superintendent of Public Instruction Tom Horne said the 2022 statute protects “biological girls” from unfair competition and ensures they are not injured by those who are stronger and more powerful. Horne, a Republican elected in November, dismissed as unfounded the contention that the two girls have no advantage because they are either prepubescent or are taking puberty blockers.
Horne said even if that is true — a point he is not conceding — the girls have a legal remedy far short of being allowed to compete in sports designated for girls only.
“They can also seek an order requiring a co-ed team if this court ultimately finds that pre-puberty males have no advantage,’’ wrote Dennis Wilenchik, one of the private attorneys hired by Horne after Democratic Attorney General Kris Mayes disqualified herself from defending the statute.
That “would be a much more reasonable proposed remedy’’ than an order allowing the two girls to participate in girls-only sports, Wilenchik told U.S. District Court Judge Jennifer Zipps.
The law in question
The state 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.’’
Supporters said it was based on inherent physical advantages of “biological males.”
The lawsuit does not challenge the entire law. It contends that, given that the two transgender girls have not entered puberty, the statute is unconstitutional at least as it applies to them.
One of the students attends The Gregory School, a private school in Tucson. The other is set to attend Aprende Middle School in Kyrene School District in Tempe.
Horne, through his lawyers, said the claim of the lack of a physical advantage is wrong. He cites several studies.
But, even absent such scientific conclusions, Horne wants Zipps to rule that allowing transgender girls to participate in girls’ sports makes no sense.
Title IX
He contends it also undermines Title IX, the federal law passed in 1972 designed to prohibit discrimination based on sex in education programs and activities that receive federal assistance.
“The purpose of enacting Title IX 50 years ago was to provide women with the same opportunities in sports as men,’’ Wilenchik said. “Allowing transgender females to participate in women’s teams eliminates that level playing field and erodes all the progress celebrated in women’s sports. The alternative is not only illogical but unfair.’’
Attorneys for the transgender girls, by contrast, read Title IX’s ban on discrimination on the basis of sex to also encompass individuals who are transgender.
“Neither Title IX, its regulations, nor its guidance purport to define ‘sex’ as something that is determined at fertilization and revealed at birth or in utero,’’ they told Zipps.
Horne’s position is that even if Zipps does not agree with his claims that transgender girls have a biological advantage, she should not void the law, nor the part that affects pre-pubescent transgender girls.
Co-ed teams
“If … they have no advantage, as plaintiffs’ assert, then there should be co-ed teams,’’ Wilenchik wrote. “The logical solution then is not to put biological males on girls’ teams, but to make those sports like the rest of life, coed. This is the solution that best addresses the needs of transgender females wishing to participate in sports who claim no physical advantage over biological females while still maintaining a level playing field.’’
If they still want a court order, Horne’s attorney told the judge, they remain free to ask her to order that certain sports be made co-ed, “which would be a much more reasonable proposed remedy.’’
To a limited extent, that already occurred.
Before the law took effect, the Arizona Interscholastic Association, which governs high school sports, already had protocols to handle requests by transgender athletes to participate in sports case by case. 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 16 requests by transgender individuals to compete.
Zipps has not set a date to consider the request to block enforcement of the law, at least as to these two plaintiffs.
CNN reports that on April 20, the House voted 219-203 to pass the GOP-led bill. The bill would prevent trans girls and women from playing on female sports teams at federally-funded schools.
