PHOENIX — Three Arizona mothers of biological girls want to intercede in a federal court case to keep their daughters from having to compete against transgender females.
Legal papers filed on their behalf by the America First Legal Foundation argue they have a right to defend a 2022 law prohibiting such competition because of the unique perspective they bring to the case.
State schools chief Tom Horne, named as defendant in the lawsuit filed on behalf of two transgender girls, already is mounting a legal defense, James Rogers, their attorney, acknowledges. But he contends that Horne is hobbled by a lack of legal resources because Attorney General Kris Mayes won’t defend the statute.
And Rogers said that Horne’s role as superintendent of public instruction requires him to consider the needs of all public school students, including transgender females.
By contrast, Rogers says, the three women have a specific — and immediate — interest in upholding the law: the real possibility that their daughters will have to compete against those born male. In fact, he told U.S. District Court Judge Jennifer Zipps, it appears that already has happened in at least two cases involving the mothers who want to intervene.
Whether they will get to participate in the case is not clear. The attorneys for the two transgender girls who are suing to overturn the law already have told Rogers they will oppose his move.
The 2022 Arizona law that says public schools and any private schools that compete against them must designate their interscholastic and intramural sports strictly as male, female or coed.
The law spells out that teams designated for women or girls “may not be open to students of the male sex.” And the statute says that is defined as the “biological sex” of the participant.
The lawsuit, filed in federal court in Tucson by the parents of two transgender girls, claims the ban is a violation of Title IX because it is discrimination on the basis of sex. It also says the ban would cause the girls “to experience shame and stigma, denies them well-known physical and mental benefit that arise from playing school sports and directly contributes to negative physical and emotional health consequences.”
But the National Center for Lesbian Rights and other attorneys are not seeking to overturn the 2022 law entirely and entitle all transgender girls to participate on girls’ teams.
Instead, they are arguing that each bid by a transgender girl should be considered individually. And in this case, they say that since neither girl is experiencing puberty — one is too young, and the other is on puberty blockers — they should be allowed to play with and against other girls.
That’s not the view of the three women who want their day in court to defend the law.
Anna Van Hoek of Gilbert said she has two daughters, one of whom will attend high school in the Chandler Unified School District and play softball on the school team.
Lisa Fink, a Glendale mother of five, says her 17-year-old daughter plays volleyball on a girls’ team at a publicly funded charter school in Phoenix.
Amber Zenczak lives in Maricopa and has three daughters, two of whom are still minors who play sports.
Rogers said all three mothers believe that participating in girls’ team sports has dramatically benefited their daughters’ personal and social development.
“Their experiences have built their self-confidence and allowed them to experience a type of camaraderie and friendship that could not be replicated anywhere else,” he told Zipps. “If their teams also included persons born as biological males, virtually all those benefits would evaporate.”
And they have specific examples.
Zenczak said her youngest daughter’s basketball team already played a game against another school team that had one player who was a biological male.
“The player was more aggressive than the other players and unnecessarily touched the other players all over the court,” the legal papers read. “This transgender player violently fouled Ms. Zencsak’s daughter but the referees did not make any calls on this obvious foul, evidently because of fear of accusations of discrimination and to avoid retaliation from trans activists.”
And then there’s what can happen off the court or field.
In a written declaration, Zenczak said the prospect of biological males in female-only spaces such as locker rooms would make the girls “feel self-conscious and frustrated by having to change clothes or shower in the presence of a teammate having male genitalia in the locker room.”
What makes all this relevant, Rogers argues, is that the three women “have standing under federal and Arizona law to sue to protect their daughters’ interests.”
And there’s something else he said that gives the women a particular interest in trying to affect the outcome of the case. Rogers said that some of their daughters actually may end up having to play with — or against — Jane Doe if the 2022 law is overturned.
She is one of the plaintiffs in the case who is currently attending the Kyrene School District, where she has played soccer and wants to again if the law banning her participation is set aside. She also could end up at a school in the Tempe Union High School District.
Also seeking to intercede is Arizona Women of Action, described as originating in October 2020 as a text chain and organized as a political action committee in 2021. And while it has no formal membership, the lawsuit says a survey of the organization’s email subscribers showed 99.6% support the 2022 law.
In a separate development, Horne is going to have to travel to Tucson if he wants to defend the law.
Zipps rejected arguments by the state school chief that the trial should be held in federal court in Phoenix because that is where he is located. And when Zipps turned him down, he asked her to reconsider and ended up with the same answer.
Horne told Zipps there is no reason to have the case heard in Tucson.
He said he lives and has his office in Maricopa County. One of the two girls resides in Maricopa County and is a student at the Kyrene School District, as are the district and its superintendent who are named in the lawsuit.
So is the Arizona Interscholastic Association, another defendant.
Zipps, however, pointed out the other girl lives in Tucson, which also is where The Gregory School, which she attends, is located.
The judge also rejected Horne’s claim that pre-trial discovery will be less expensive in the Phoenix area.
“To the extent that discovery is conducted in-person, the venue for the case makes no difference: Phoenix witnesses will be deposed in Phoenix and Tucson witnesses will be deposed in Tucson, just as they would in any other case,” Zipps wrote. Anyway, she said, a lot of the discovery is likely to be primarily electronic, meaning costs should be no different regardless of where the trial is held.
Horne had no better luck with the 9th U.S. Circuit Court of Appeals. A three-judge panel there just this past week said he was not entitled to such “extraordinary” relief.
He contends that, puberty or not, there is medical evidence that those born male are inherently stronger than those born female at all stages of development. And that, Horne said, makes inclusion of transgender girls both unfair and potentially dangerous to biological female athletes.
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