Court: Arizona's ban on trans girls playing girls sports isn't justified

Arizona has not shown a legitimate reason to categorically ban transgender girls from participating in girls’ sports in school, the 9th Circuit Court of Appeals ruled Monday.

In a 55-page decision, the three-judge panel rejected claims by state schools chief Tom Horne that there are legitimate reasons for the 2022 state law spelling out that teams designated for women or girls “may not be open to students of the male sex.’’ By “sex,’’ the law means the one assigned at birth based on a baby’s sex organs.

Strictly speaking, Monday’s ruling affects only two transgender girls in Arizona who want to participate in sports, one a student at Kyrene Aprende Middle School in Chandler and another attending the private Gregory School in Tucson. The judges said both have been medicated to block hormones and there is no evidence presented that either had a physical advantage over those born female.

The ruling simply orders that they be allowed to participate in girls’ sports while the litigation progresses through the court system.

But Rachel Berg, an attorney with the National Center for Lesbian Rights, which represents the two girls, said the ruling’s effects — and the precedent set — is crucial for others in the same situation.

“The 9th Circuit recognized that the law is unconstitutional because it’s a categorical ban on all transgender girls from playing on school sports teams,’’ Berg said. “It does so regardless of their individual circumstances. The 9th Circuit recognized that just because somebody is transgender tells you nothing about whether they have an athletic advantage.’’

Horne said the ruling is not a surprise.

“The 9th Circuit is very left wing,’’ the Republican schools superintendent said. “They’re the most reversed circuit in the country.’’

If he’s going to win this, he’ll have to go to the U.S. Supreme Court, Horne said.

He also accused the court of ignoring evidence he presented about the biological advantage of transgender girls at any age.

But appellate Judge Morgan Christen, writing for the court, said the evidence presented when the case first went to trial does not back that contention.

She also noted the ban does not consider individual circumstances as it affects everyone from kindergarten through graduate school. It also covers all sports, including intramural games, regardless of whether physical contact is involved.

“Significantly, the ban turns entirely on a student’s transgender or cisgender status, and not at all on other factors like levels of circulating testosterone,’’ Christen wrote.

It also overrides the policies of the Arizona Interscholastic Association which, until the law was passed, made decisions on a case-by-case basis. Its rules allowed transgender girls to play on girls’ teams when a committee of experts found “that the student’s request is appropriate and is not motivated by an improper purpose and there are no adverse health risks to the athlete.’’

Christen said this has hardly created a flood of demand.

“In the dozen or so years before adoption of the act, the AIA approved just seven transgender students to play on teams consistent with their gender identities — a tiny number when compared to the roughly 170,000 students playing sports in Arizona each year,’’ the appellate judge wrote.

The judge also noted that the state law overrules regulations of the National Collegiate Athletic Association. That organization has a sport-by-sport approach that requires transgender students to document sport-specific testosterone levels at the beginning of the season and then six months in.

What the Arizona law does, Christen wrote, is replace that with its one-size-fits-all approach. So the law applies, she said, to children who are too young to have gone through puberty, transgender women and girls who have received puberty-blocking medication and hormone therapy and have never gone through male puberty, and transgender girls who have experienced male puberty but have received sustained hormone therapy to suppress circulating testosterone levels.

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Horne, for his part, said there is justification for a blanket rule versus a case-by-case basis.

“If you watch kids on the playground, the third graders, the boys are going to do better at athletics than the girls,’’ he said.

“What the data show is that even prepubescent boys have an advantage over girls,’’ Horne said. “In fact, any elementary school gym teacher will tell you that.’’

He criticized an expert witness called on behalf of the transgender girls.

“He’s a doctor who’s performed hundreds of operations on these people,’’ Horne said. “So he’s defending his business. It’s a pretty tawdry business in my opinion.’’

Christen acknowledged that Horne cited “a handful of studies’’ suggesting that prepubescent boys may be taller, have more muscle mass, less body fat or have greater shoulder internal rotator strength than prepubescent girls.

“These students, however, neither attributed these differences to biological rather than sociological factors nor concluded that these differences translated into competitive academic advantages,’’ Christen wrote. Sociological factors, the court found, include greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of boys and girls surveyed.

The judge also said other studies cited by Horne have their own flaws.

One of those says transgender females who receive puberty blockers have advantages over cisgender females in lean body mass, grip strength and height.

“But appellants overlook that in these studies, male puberty was only partially blocked,’’ Christen wrote.

“In the lean body mass study, for example, the transgender women participants had much more testosterone exposure than transgender girls treated with modern protocols because they started puberty blockers at an average age of 14.5 years,’’ she said. In one study about height, the judge said, the girls had received puberty blockers from around age 13 and cross-sex hormones at 16 — far later than the girls who are challenging the Arizona law.

Moreover, Christen said the way the law is worded, it allows other students — women, girls, cisgender men and boys, and transgender men and boys — to participate in sports that correspond with their gender identifies.

“Only transgender women and girls are barred from doing so,’’ she wrote. “The act discriminates on its face based on transgender status.’’

Nor was the appellate court swayed by the fact that the law would allow transgender girls to play on boys’ teams.

Christen cited the findings of U.S. District Court Judge Jennifer Zipps, who issued the initial ruling allowing the two transgender girls to play girls’ sports. Zipps said the two have “athletic capabilities like other girls their age’’ and would find playing on a boys’ team “humiliating and embarrassing.’’

“In fact, the (trial) court found that participating in sports on teams that contradict one’s gender is equivalent to gender identity conversion efforts, which every major medical association has found to be dangerous and unethical.’’