This year, two trans women were denied entry to play on college sports teams by GOP congressional leaders and Republican Superintendent of Public Instruction Tom Horne.
Next time, 11-year-old Jane Doe and 15-year-old Megan Roe sued the Arizona Department of Education and their schools over the implementation of Arizona’s trans performer ban. The teenagers, who are using pseudonyms to protect their names, claim that the 2022 law, which forbids trans women from joining women’s groups, violates numerous federal laws, including Title IX, which forbids sex-based discrimination.
In July 2023, U.S. District Court Judge Jennifer Zipps approved a preliminary order that allows Doe and Roe to perform on sports teams that best reflect who they are while the situation continues.
However, House Speaker Ben Toma and Senate President Warren Petersen, who co-sponsored the law, disagreed with Zipps’ decision, alleging that allowing the teens to join girls’ teams would harm their cisgender peers.
Attorney General of Arizona, Kris Mayes, who is tasked with defending state laws in court, declined to support the 2022 rules.
On March 14, counsel for GOP officials and Horne urged the 9th Circuit Court of Appeals to reject Zipps’ decision, criticizing her for wrongfully disregarding their information, and lawyers representing the two girls rebutted that the order should remain in place.
GOP leaders: The transgender restrictions in Arizona isn’t biased.
Attorney Justin Smith claimed before the three-judge appellate panel that Zipps’ determination was incorrect because she ignored the inherent differences between men and women before menstruation.
And states that the 2022 rules violate Title IX by discriminating against transgender girls are false, he said. According to Smith, biological sex has always been used to distinguish students, such as in bathroom names, and the 2022 law is an extension of those guidelines, not an attempt to prejudice one particular group.
Judge Morgan Christen, a nominee of Barack Obama, refrained from reversing that claim, asking why she shouldn’t interpret the 2022 law as being focused on transgender women given that the discussion of trans girls in schools was ongoing throughout the legislative process that led to it.
“There was a status quo, and then there was policy. And the transgender women appeared to be targeted and excluded by the regulations,” she continued. “Why shouldn’t we treat this as a transgender ban, you ask?”
Smith responded that the procedure that existed prior to the government getting involved in 2022 was inadequate. Legislators were hoping to develop a better model for college athletic programs, he claimed, rather than make up for it.
The Arizona Interscholastic Association, which regulates almost 170,000 high school athletes in the state, made the decision on a case-by-case basis before the 2022 law was passed. Between 2017 and 2022, just 16 transgender students were allowed to join groups consistent with their sex identification, and about half of them were transgender girls.
“Because it provided a clear and consistent standard where it didn’t exist in middle school, this law did have an impact on the status quo. The NCAA had outsourced its principles the day before the Arizona Senate hearing, according to Smith, and it was uneven and personal in high school. “With that patchwork of regulations across all years, the Arizona Legislature was justified in putting forth a second, goal standard that was not meant to target but, as legislative studies show, was based on extensive clinical research showing a biological difference.”
However, Christen and Judge Mary Margaret McKeown, who was appointed by Bill Clinton, made it clear that the plethora of evidence Smith claimed the district court had rejected wasn’t what he had claimed.
Instead, according to McKeown, the majority of the evidence presented by Horne and legislative leaders was about physical differences between boys and girls after puberty. But the two trans girls in the case have never gone through puberty, having both been on puberty blockers. Doe plans to start hormone therapy once her doctors have given her permission to do so. Roe also takes hormone therapy.
Smith responded that some prepubescent children were included in population studies of thousands of children. And he pointed out that even Zipps acknowledged differences existed between girls and boys, though she dismissed them as minimal and said in her decision that the greater social encouragement of boys to engage in athletic endeavors couldn’t be ruled out as a reason why boys are better at sports than girls.
“The legislature would still be justified in creating this distinction between sports teams,” Smith continued. “Even if you accept that as true, there are non-physiological reasons why boys have an advantage over girls.”
Christen questioned Smith about how the appeals court should balance the conflict between Zipps’ findings and those of the 2022 law. She questioned whether Smith would advocate for throwing out Zipps’ conclusions altogether. Smith appeared to agree, claiming that the legislature should be upheld in cases where the courts have previously upheld a position that was extremely complex.
“Legislative bodies are supposed to serve as these laboratories of democracy at the state level in our system of government,” he said. “When there is a conflict in the legislative record, the court is supposed to let the legislature make those decisions.”
However, McKeown expressed doubt because other decisions have suggested that the courts should be the final authorities over what should be the norm, especially when constitutional issues are in question.
Puberty blockers aren’t sufficient.
Maria Syms, the director of legal services for the Arizona Department of Education, raised suspicions about the effectiveness of puberty blockers, saying that the medication, which is intended to prevent the onset of puberty, isn’t sufficient to downplay the physical differences between biological males and females. She referred to them as “experimental” treatments and cited the recent ban on them for minors by England’s National Health Service as evidence that they don’t work.
The two teen girls have not gone through or intend to go through male puberty, which puts them more physically on par with their cisgender classmates than their boys, which is a key defense in the lawsuit against the 2022 law. Puberty blockers, which suppress the body’s release of hormones to stop the onset of puberty, have been approved for use by the FDA for nearly 40 years, and have been long used to treat precocious puberty in young children. They have been proven safe and effective by years of research.
Christen harshly criticized Syms for making reference to a subject that was not in the appeal, and advised her to file a motion if she wanted the panel to take England’s policy into account. The judge added, however, that she was sympathetic to Syms’ opinion.
“For lack of a better term,” she said, “I think you have a point where the science in this area is evolving.”
However, Christen said that the trio of judges will be looking into whether Zipps’ decision to grant an injunction for the two girls was made in error.
Syms said it was, claiming that allowing the two teens to compete on girls’ teams would result in cisgender girls being “toppled” from the winner’s podium.
“The preliminary injunction is having girls compete for second place, which can mean the difference between winning and losing, victory and defeat, college scholarships and not going to college at all,” she said. “In the context of competitive sports, Plaintiffs claim that the differences are minimal, but those differences are significant and meaningful when compared to seconds and inches.”
Roe and Doe: 2022 law is both discriminatory and unnecessary
The two teens’ attorneys, Justin Rassi, claimed that the state’s 2022 law’s opponents had failed to establish a problem that the law was trying to solve. Even Petersen himself acknowledged during legislative hearings that he had no idea that any transgender woman in Arizona would lose a team spot to a transgender classmate.
When Judge David Alan Ezra, a Ronald Reagan appointee, rebutted that another concern expressed by Petersen, Toma, and Horne appeared to be that girls were being prevented from gaining athletic achievements, Rassi said that didn’t make sense.
“There is no such thing as a transgender girl ever denying another girl of joining that team,” he said, “so it follows that there is no issue of a single girl ever displacing another girl from a team.”
Ezra questioned whether there was a distinction between individual sports and team sports, arguing that perhaps there should be more emphasis on activities where one player’s individual performance is more important than the group’s ability to work together. Rassi disputed that, noting that a person’s transgender status has nothing to do with their physical ability.
“You can’t tell a person’s athletic ability about them if you know they are transgender,” he said. “A transgender person may be terrible at sports, as I am, but they may also be wonderful at sports,” he said.
Rassi criticized the 2022 law as inherently discriminatory, noting that the 9th Circuit Court of Appeals had previously ruled a similar case involving a trans athletic ban from Idaho was unfairly targeting transgender people.
And he continued, adding that Horne and GOP leaders refute any claims that the Arizona law violates Title IX and is not discriminatory. In Bostock v. Clayton County, which dealt with workplace discrimination, the U.S. Supreme Court ruled in 2020 that federal civil rights protections cover sexual orientation and gender identity.
The courts, Rassi said, have long aligned the outcome of that ruling with the provisions of Title IX, meaning that the gender identity of students is amply protected against discrimination. Title IX forbids federally funded schools from passing laws that discriminate against students based on sexual orientation, and those institutions that violate those laws are subject to forfeiting federal funds.
Christen argued that Title IX should clarify that gender identity amounted to a protected status, but she didn’t.
“Where does Title IX unambiguously state — and I think it would have to unambiguously state — that a recipient of federal funds cannot exclude transgender females?” she inquired.
Rassi said he disagreed that it must be made clear for inclusion in the list of traits that students cannot be discriminated against. The high court’s rulings on the matter should be enough, he said.
“According to the Supreme Court, it is impossible to discriminate against someone based on their transgender status without also excluding them based on their sex,” he said in Bostock. “That’s because gender identity is a component of sex, they say. It is the wrong prism to view gender identity as a separate and distinct concept from sex. They are intertwined ideas.”
According to Rassi, Zipps’ decision should be confirmed, and Horne and GOP leaders should not be given credence because they failed to provide convincing evidence to support their position.
“(The state) failed to justify this law by showing that it was substantially related to legitimate governmental objectives,” Rassi said. “It failed to demonstrate that prohibiting every single transgender girl in every sport at every age level in every level of competition is in any way related to fairness in women’s sports or safety.”
The judges gave the arguments some thought, but they didn’t provide any indication on when the court would decide whether Roe and Doe can continue playing for teams that reflect their gender identities. A decision could come any day.
