Judge rules two Arizona transgender girls can play on girls' teams

PHOENIX — A federal judge blocked Arizona from excluding two transgender girls, including a Tucsonan, from playing on school teams designated for girls.

U.S. District Court Judge Jennifer Zipps rejected arguments by state schools chief Tom Horne that it would be unfair to allow those assigned male genders at birth to participate against females. The evidence Horne presented claiming that transgender girls are stronger does not hold up under scrutiny, the judge ruled Thursday in a 35-page order.

A 2022 Arizona law bars students whose “biological sex” at birth was male from participating in girls’ sports in public or charter schools and at private schools that compete with those schools.

Zipps said that law violates Title IX, the 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 two girls who filed suit, who otherwise would be participating this new school year in sports, would suffer irreparable harm under the law, the judge said.

Strictly speaking, Thursday’s order does not strike down the law. Instead, it bars enforcement as it applies to the two transgender girls, one who attends The Gregory School, a private school in Tucson, and the other set to attend Aprende Middle School in the Kyrene School District.

But in her ruling, Zipps upheld the existing policy of the Arizona Interscholastic Association which, on a case-by-case basis, has allowed students to participate in sports based on the gender with which they identify. During testimony, a doctor who advises the association said there have been just 16 requests by transgender students to compete out of about 170,000 high school athletes.

The decision paves the way for other transgender girls to seek similar relief.

Thursday’s ruling is not the last word. It allows the two girls to participate on school teams while the legality of the law gets a full-blown trial.

Horne vowed to pursue the case, saying it ultimately will be decided by the justices of the U.S. Supreme Court.

“And they will rule in our favor,’’ said Horne, a Republican elected in November as state superintendent of public instruction.

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. Horne repeated that claim Thursday, saying he presented peer-reviewed studies that show pre-pubescent boys — his term for the transgender girls — have an advantage over girls in sports.

Zipps said that doesn’t hold up under scrutiny. Instead, she said, attorneys for the girls presented evidence that any differences between boys and girls in various athletic measurements prior to puberty “are minimal or nonexistent.’’

The physical characteristics of transgender girls in terms of height, weight and strength overlap with those of other girls, she said.

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“In other words, some girls may be taller than average, and some transgender girls may be taller than average,’’ the judge wrote.

“The rationale for excluding transgender girls with above average physical characteristics is equally applicable to excluding taller than average girls,’’ she continued. “But height, weight, or strength factors are not used in any level of competition to protect girls or women athletes.’’

Nor was she swayed by claims the law physically protects girls from possible sports injuries.

Zipps pointed out that while the 2022 law specifically bars transgender girls from playing in girls’ sports, there is no similar bar to transgender boys — identified by Horne and other defenders of the law as “biological girls’’ — from playing in boys’ sports, presumably where they could be hurt.

In her extensive ruling, the judge relied heavily on the concept that transgender girls are, in fact, girls.

She acknowledged 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 that “gender dysphoria’’ — the 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.

That’s important, the judge said, because efforts like this law to deny transgender girls the opportunity to participate in sports with other girls can be harmful. She cited high rates of attempted suicide in the transgender community.

“For social transition to be clinically effective, it must be respected consistently across all aspects of a transgender individual’s life,’’ the judge wrote. “It would be psychologically damaging for a transgender girl to be banned from playing school sports on equal terms with other girls.’’

She also noted that both girls already have been playing sports.

“For transgender girls who are already playing on girls’ teams, a law that requires them to be excluded from continued participation on girls’ teams would have a further negative impact on their health and well-being, causing them to feel isolated, rejected, and stigmatized, and thereby putting them at high risk for severe depression and/or anxiety.’’

And, to drive the point home, Zipps said the girls’ “mental health is dependent on living as girls in all aspects of their lives.’’

The ban, approved by the GOP-controlled Legislature, was signed into law last year by then-Gov. Doug Ducey, a Republican.