The fate of an Arizona state law banning trans girls from participating in sports in accordance with their gender identity is up in the after a federal judge limited its enforcement on July 20.
The Arizona legislature passed a law in 2022 providing that public or private school athletic teams designated as being for girls may not include transgender girls. Two transgender girls who want to compete in girls’ sports at Kyrene Middle School and The Gregory School filed a federal lawsuit on April 17, 2023, asking for declaratory relief that enforcement of the law violates their rights to Equal Protection of the Laws (14th Amendment), Title IX of the Education Amendments Act (which forbids discrimination because of sex by educational institutions that receive federal money), the Americans with Disabilities Act (which prohibits discrimination against qualified persons with disabilities), and Section 504 of the Rehabilitation Act (which prohibits disability discrimination by programs that receive federal funding). The plaintiffs then filed a motion for preliminary injunction to block enforcement of the law while the case is pending.
On July 20, U.S. District Judge Jennifer G. Zipps issued an order granting the motion for preliminary injunction, and specifically ordered that the law cannot be enforced against the two transgender plaintiffs, noting a stipulation to that effect by Kyrene Middle School and The Gregory School at the oral argument on this motion. The state filed a notice on June 21 that it would appeal the preliminary injunction to the Ninth Circuit Court of Appeals.
The court’s order granting the preliminary injunction did not specify whether it was effective against all enforcement of the law, or just prohibiting its enforcement against the transgender plaintiffs, identified in court records as Jane Doe and Megan Roe, although the order specified that Thomas C. Horne, the state’s Superintendent of Instruction, could not enforce the law “as to Plaintiffs” and that the statute “shall not prevent Plaintiffs from participating in girls’ sports.”
Prior to the passage of the law, the Arizona Interscholastic Association (AIA), a non-governmental body that oversees interscholastic sports in Arizona, had adopted a policy of making an individual determination whether a transgender girl could participate in girls’ sports based on a variety of factors considered relevant to whether the individual could fairly compete against cisgender girls. Judge Zipp held that the AIA transgender policy “complies with the terms of this preliminary injunction.”
The court received voluminous evidence in the form of expert declarations submitted under oath by all parties. State legislators were allowed to intervene as co-defendants to defend the statute, which was passed during the prior Republican gubernatorial administration and would not likely be defended with equal enthusiasm by the present Democratic gubernatorial administration and attorney general. In a prior ruling, the judge granted the plaintiffs’ motion to be allowed to sue under pseudonyms to protect their privacy as transgender minors, and the lead plaintiff is listed pseudonymously as Helen Doe, Jane Doe’s mother.
The court made extensive findings of fact underlying its determination that plaintiffs were likely to prevail. The key findings were that “plaintiffs are transgender girls who have not and will not experience male puberty,” that before the law was passed they “would have been allowed to play on girls’ sports teams” under the policy that AIA had adopted in December 2018, that the statute “prevents them from playing on girls’ sports teams at their schools,” that “excluding plaintiffs from school sports causes very serious injury to plaintiffs,” and — most significantly — that “transgender girls who have not undergone male puberty do not have an athletic advantage over other girls.” Responding to a fatuous argument by the defendants that transgender girls are actually boys who can play on boys’ teams, the court specifically found that “plaintiffs cannot play on boys’ sports teams.” Indeed, because of gender-affirming care they have received, they would be at serious risk of injury competing with pubescent boys.
The court extensively discussed and analyzed the expert testimony supporting each of these findings. The opinion, reflecting extensive briefing and argument by the parties, explains why the court finds plaintiffs’ evidence persuasive and defendants’ evidence not, and on some points even irrelevant.
Applying Ninth Circuit precedents, Judge Zipp found that “laws that discriminate against transgender people are sex-based classifications and, as such, warrant heightened scrutiny,” which throws the burden on the government to justify the challenged policy. Defendants claimed that the purpose of the law is to protect girls from physical injury in sports and promote equality and equity in athletic opportunities. Judge Zipp found that, in fact, the statute did not advance these goals, but rather detracted from them.
“The Court finds that Defendant Horne and Intervenors fail to produce persuasive evidence at the preliminary injunction stage to show that the Act is substantially related to the legitimate goal of ensuring equal opportunities for girls to play sports and to prevent safety risks,” she wrote, concluding that plaintiffs “are likely to prevail” on their constitutional equal protection claim.
Similarly, as to Title IX, the judge took notice of a recent Ninth Circuit opinion applying the reasoning of the Supreme Court’s Bostock decision under Title VII (the federal employment discrimination statute) to hold that gender identity discrimination claims can be brought under Title IX.
“The Act’s classification of all transgender girls as male and its prohibition of students who are ‘male’ from playing on girls’ teams intentionally excludes all transgender girls, including Plaintiffs, from participating on girls’ teams,” she wrote, finding this was a “cognizable harm under Title IX,” and again rejecting the defendants’ arguments that because the schools offer teams for both boys and girls and transgender girls can compete as ‘males,’ they have not deprived transgender girls of the opportunity to participate in sports.
The judge found that if she did not grant a preliminary injunction, the plaintiffs would suffer “irreparable harm,” and that the balance of public interest and equity favored the plaintiffs. She specifically found that the alleged harm to the defendants — “that biological girls will be forced to compete against transgender girls who allegedly have an athletic advantage” — was “unsupported by the record.” Thus, issuing the preliminary injunction would not harm any defendant in this case.
The court saw this as a status quo injunction, restoring the situation to what it was before the challenged law was enacted and, as she observed, leaving in place the AIA policy, under which both of the transgender plaintiffs are entitled to participate in girls’ sports at their schools.
So far, courts have generally agreed with the arguments of transgender rights advocates that transgender girls who began gender-affirming treatment before puberty should be allowed to compete in girls’ sports, so this ruling is consistent with several other cases in which district courts have enjoined similar laws. Because most of the statutes banning such participation are very recent, there is not yet a significant body of appellate precedent, so it remains speculative whether the courts of appeals will agree with the trial judges.
Judge Zipp’s opinion gives a detailed rationale for its conclusions and can be an important source of analysis and arguments as attorneys for transgender girls bring challenges in other states. How the case will fare in the Ninth Circuit, at least initially, may well depend on the composition of the three-judge panel that first gets the case. In light of the number of such laws enacted and now being challenged in the courts, it seems likely that this issue will eventually rise to the Supreme Court.
