Note: This story first appeared in the Arizona Mirror on July 27, 2023. It is republished here with permission and under Creative Commons license CC BY-NC-ND 4.0.
Republican lawmakers are challenging a federal judge’s ruling that gave two transgender students permission to play on girls’ sports teams, claiming that their participation is fundamentally unfair to other girls hoping for a spot on the same team.
Last week, U.S. District Court Judge Jennifer Zipps blocked the state’s trans athletic ban for two Arizona girls while their lawsuit against it proceeds. The girls, described as 11-year-old Jane Doe and 15-year-old Megan Roe in legal filings, planned to sign up for school sports teams that match their gender identity this year, but a 2022 law would have prevented them from doing so.
On Monday, Senate President Warren Petersen and House Speaker Ben Toma requested that Zipps stay her order, rejecting her reasoning that allowing the girls to play won’t harm their classmates.
What’s the case about?
A recent shift in the GOP’s focus to incendiary culture war issues led to a wave of anti-LGBTQ laws proposed across the country last year. In Arizona, that resulted in the Republican-majority legislature prohibiting trans girls from joining school sports teams consistent with their gender identity. For Doe and Roe, both avid athletes who have lived as girls nearly their entire lives, that meant they were effectively shut out of their school teams. The two responded by taking the state education department and their schools to court in April in an effort to strike down the law.
The two girls argued that the prohibition violates various federal protections, including those in the Fourteenth Amendment, Title IX and the Americans with Disabilities Act. The Fourteenth Amendment guarantees equal protection for all and the Title IX Education Amendments of 1972 expressly forbid federally funded schools from discriminating against students based on gender identity. The girls note that they were both diagnosed with gender dysphoria, a medically recognized condition characterized by extreme distress that arises when there’s a mismatch between a person’s gender identity and biological sex. Last year, a federal appeals court ruled that gender dysphoria is covered under the protections of the Americans with Disabilities Act.
While the public school district and the Tucson private school the two girls attend refused to defend the policy, saying they would allow them to participate if the law wasn’t in place, GOP legislative leaders Petersen and Toma were quick to request permission to intervene on the law’s behalf. Both voted to pass the law and Petersen was a co-sponsor. Newly elected Attorney General Kris Mayes, a Democrat, also refused to go to bat for the law. Besides Petersen and Toma, Republican Superintendent of Public Instruction Tom Horne is the only other advocate for the ban who’s involved in the case.
What did the judge say?
Zipps was unconvinced by arguments from attorneys for Horne and GOP leaders that allowing trans girls to play on school teams takes away opportunities and poses increased risks for their peers. She pointed to the dearth of actual trans athletes in the state to question the logic behind the law. During legislative committee hearings, a lobbyist for the Arizona Interscholastic Association, which oversees public school sports across the state, told legislators that only about seven transgender students were allowed to play in the past decade. Even taking into account the entire population of transgender Arizonans wouldn’t make a significant dent in women’s sports, Zipps said.
“Approximately one half of one percent of the population is made up of transgender females,” she wrote. “It appears untenable that allowing transgender women to compete on women’s teams would substantially displace female athletes.”
Zipps added that the law doesn’t appear to serve the purpose Horne and others say it does. It applies to all trans girls, from kindergarten through college, despite the fact that competitive sports doesn’t occur until the high school and college levels. And trans boys are still allowed to join teams that match their gender identity, negating the claim that the law protects biological girls from the higher risk of physical injuries. Instead, the law treats boys and girls teams differently, paving the way for discrimination and creating an environment contrary to Title IX, which was passed to place women’s sports on an even footing with men’s sports.
“Precluding transgender girls, who have not experienced male puberty, from playing girls sports, treats transgender boys and transgender girls differently and treats boys’ and girls’ sports differently, with only girls’ teams facing potential challenges, including litigation, related to suspected transgender players,” Zipps wrote. “This creates a different, more onerous set of rules for women’s sports when compared to men’s sports.”
Arguments that Doe and Roe— and by extension, all transgender girls — have innate physical advantages over biological girls also failed to convince Zipps. Doe hasn’t yet gone through puberty and has plans to begin taking puberty blockers, while Roe has taken both puberty blockers and hormone therapy for years. Testosterone suppression means that transgender girls are more physically akin to biological girls than biological boys, Zipps said, and studies indicate that the gender differences in athletic achievement aren’t as significant as they are perceived to be.
“Transgender girls, who have not experienced male puberty, play like girls,” she wrote. “There is no logical connection between prohibiting them from playing on girls’ sports teams and the goals of preventing unfair competition in girls sports or protecting girls from being physically injured by boys.”
Why do GOP leaders disagree?
Petersen and Toma rebutted, saying that the law follows the long-held and legal practice of separating teams by biological sex. Title IX prohibits sex-based discrimination, but it also includes narrow permissions to separate teams by biological sex when those teams are competitive in nature. Historically, the logic behind the exception was that doing so allows equal access to success for both women and men. Attorneys for the two lawmakers add that the 2022 law represents, in part, the state’s responsibility and interest in making up for past transgressions.
“Separating sports teams by biological sex ‘simply recognizes the physiological fact that males would have an undue advantage competing against women,” reads the brief. “There is clearly a substantial relationship between the exclusion of males from the team and the goal of redressing past discrimination and providing equal opportunities for women.”
Attorneys for the legislative leaders accused Zipps of disregarding the threats to biological girls. Limiting her decision to only Doe and Roe amounted to a failure to consider the implications for biological girls across the state. And even in the individual cases of Doe and Roe, biological girls stand to lose, they said.
“The teams on which Doe and Roe wish to compete have competitive try-outs and competitive meets,” the attorneys wrote. “This means that Doe and Roe, to the extent that they succeed in try-outs and meets, ipso facto will displace biological girls.”
Any situation in which a transgender athlete comes in any place except last necessarily takes a victory away from a biological girl, they added.
The argument that the girls cannot join boys teams is invalid, attorneys said. The two girls noted that the treatment for gender dysphoria is gender affirming care, which can include social acceptance like being able to join a team consistent with the person’s gender identity. Zipps, in her ruling, cited that reasoning in explaining her decision to allow the girls to compete. Being forced to play on a boys team is in direct conflict with the medically accepted treatment for gender dysphoria and would, in fact, worsen the condition.
But, attorneys for Petersen and Toma said, simply having a medical condition doesn’t mean that the 2022 law violates their rights.
“It is not uncommon for biological males to have medical conditions that prevent them from participating on male sports teams, and those males suffer the same injury of being unable to participate in sports,” they wrote. “Ultimately, that exclusion is due to their medical condition, not due to the State’s sex-based separation of sports teams.”
In the end, it isn’t Doe and Roe whose rights are being violated, but rather biological girls who are forced to compete against them, the attorneys said
“Being required to compete on an even biological footing is not a cognizable harm, while forcing girls to compete on an uneven footing against biological boys is a cognizable harm — which the Court ignores,” reads the brief.
Attorneys for Toma and Petersen requested that Zipps rule on the request by July 31, after which they have vowed to appeal if she doesn’t agree.
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