Appeals court weighs implementing Arizona’s trans student athlete ban

GOP legislative leaders and Republican Superintendent of Public Instruction Tom Horne went to court this week to bar two trans girls from playing on school sports teams consistent with their gender identity. 

Last year, 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 athlete ban. The teens, who are using pseudonyms to protect their identities, alleged that the 2022 law that forbids transgender girls from joining girls teams violates multiple federal protections, including the Equal Protection Clause in the Fourteenth Amendment and Title IX, which prohibits sex-based discrimination. 

In July 2023, U.S. District Court Judge Jennifer Zipps approved a preliminary injunction that allows Doe and Roe to play on sports teams that best reflect who they are while the case continues. 

But Horne, who has embraced culture war issues as the state’s public schools chief, and Senate President Warren Petersen, who co-sponsored the law, and House Speaker Ben Toma challenged Zipps’ ruling, arguing that allowing the teens to join girls teams would be detrimental for their cisgender peers. 

Arizona Attorney General Kris Mayes, whose role it is to defend state laws in court, refused to take up that mantle for the 2022 law. 

On March 14, attorneys for GOP leaders and Horne urged the 9th Circuit Court of Appeals to overturn Zipps’ ruling, criticizing her for unfairly disregarding their evidence, and attorneys representing the two girls rebutted that the injunction should remain in place. 

GOP leaders: Arizona’s trans athlete ban isn’t discriminatory

Attorney Justin Smith told the three-judge appellate panel that Zipps’ decision missed the mark because she ignored the innate differences that exist between women and men, even before puberty. 

And claims that the 2022 law violates Title IX by discriminating against transgender women are unfounded, he said. Biological sex, Smith said, has always been used to separate students, such as in bathroom designations, and the 2022 law is simply an extension of those policies, not an intent to discriminate against one group. 

Judge Morgan Christen, a Barack Obama appointee, pushed back on that assertion, questioning why she shouldn’t interpret the 2022 law as focused on transgender women, given that the legislative process that led to it was marked by constant discussion of trans girls in schools. 

“There was a status quo, and then there was legislation. And the legislation seemed to target and single out transgender women,” she said. “Why shouldn’t we review this as a transgender ban?”

Smith responded that the process that existed prior to the legislature getting involved in 2022 was insufficient. Rather than seeking to discriminate, he said, lawmakers were hoping to create a better framework for school athletic programs. 

Before the 2022 law was passed, transgender athletic participation was decided on a case by case basis by the Arizona Interscholastic Association, which oversees roughly 170,000 highschool athletes in the state. Between 2017 and 2022, only 16 trans students were allowed to join teams consistent with their gender identity, and about half of them were trans girls. 

“This law did effect a change in the status quo because it provided a clear and consistent standard where it did not exist in middle school. It was inconsistent and confidential in high school, and the day before the Arizona Senate hearing, the NCAA had outsourced its rules,” Smith said. “With that patchwork of rules across all ages, the Arizona Legislature was justified in putting forth a single, objective standard that was not meant to target but, as legislative findings show, was based on extensive scientific research showing a physiological difference.” 

But Christen and Judge Mary Margaret McKeown, who was appointed by Bill Clinton, noted that the abundance of evidence Smith claimed the district court had dismissed wasn’t what he claimed. 

Instead, much of the evidence submitted by Horne and legislative leaders, McKeown said, concerned physical differences between girls and boys after puberty. But the two trans girls in the case have never gone through puberty, having both been on puberty blockers. Roe is also taking hormone therapy and Doe plans to do so once her doctors agree to begin the treatment. 

Smith replied that population studies of thousands of children included some children who were prepubescent. 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. 

“Even if you accept that as true — that there are non-physiological reasons for boys having an advantage over girls — the legislature would still be justified in creating this difference between sports teams,” Smith added. 

Christen asked Smith how the appeals court should square the conflict between Zipps’ findings in her ruling and the legislative findings that prompted the 2022 law. She questioned whether Smith would advocate for throwing out Zipps’ conclusions altogether. Smith appeared to agree, saying that the courts have previously ruled that, in significantly complex issues, the legislature’s position should be upheld. 

“In our system of government, legislatures are supposed to be these laboratories of democracy at the state level,” he said. “When there is a conflict in the legislative record, the court is supposed to let the legislature make those decisions.” 

But McKeown was skeptical, saying that other rulings have determined that the courts should be the final determinants for what should reign supreme, especially when constitutional issues are at stake. 

Puberty blockers aren’t enough 

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 called them “experimental” treatments and pointed to the recent decision of England’s National Health Service to ban them for minors as proof that they don’t work. 

A key argument in the lawsuit against the 2022 law is that the two teen girls have not undergone male puberty and don’t ever intend to, placing them more on par physically with their cisgender girl classmates than boys. 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. Decades of research has proven them safe and effective. 

Christen sharply criticized Syms for referencing a topic that was not at issue in the appeal, advising her to file a motion if she wanted the panel to take England’s policy into consideration. The judge added, however, that she was sympathetic to Syms’ opinion. 

“I think you have a point that the science in this area is, I will say, evolving — or it’s not done yet, for lack of a better term,” she said. 

But, ultimately, Christen said, the matter before the trio of judges is whether Zipps’ decision to approve an injunction for the two girls was made erroneously. 

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. “Plaintiffs say the differences are minimal, but when you’re talking about seconds and inches in the context of competitive sports, those differences are significant and meaningful.” 

Roe and Doe: 2022 law is both discriminatory and unnecessary

Justin Rassi, an attorney representing the two teens, argued that the state officials defending the 2022 law had failed to show that there was a problem it was solving. Even Petersen himself admitted during legislative hearings that he was unaware of any cisgender girl in Arizona losing a spot on a team 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. 

“If there is no example of a single girl ever displacing another girl from a team, it follows that there is also no issue of a transgender girl ever depriving another girl of winning on that team,” he replied. 

Ezra questioned whether there was a difference between team sports and individual sports, saying that perhaps there should be heightened concern about activities in which one player’s personal performance matters more 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. 

“Simply knowing that a person is transgender tells you nothing about their athletic ability,” he said. “A person can be transgender and they might be woeful at sports, as I am, (or) they might be wonderful at sports.” 

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 added, claims from GOP leaders and Horne that the Arizona law isn’t discriminatory because it acts in the spirit of Title IX are incorrect. In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, which centered around workplace discrimination, that sexual orientation and gender identity are included under federal civil rights protections. 

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 prohibits federally funded schools from enacting policies that discriminate against students based on sex, and schools that violate those provisions face forfeiting federal dollars. 

Christen seemed unconvinced, saying that Title IX should more clearly state that gender identity amounted to a protected status. 

“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 asked.

Rassi said he disagreed that it needed to be clearly included for it to be part of the list of characteristics for which students cannot be discriminated against. The high court’s rulings on the matter should be enough, he said. 

“The Supreme Court said in Bostock that it is impossible to discriminate against a person based on their transgender status without discriminating against them on the basis of sex,” he said. “That is because gender identity is a part of sex. It is the wrong prism to view gender identity as a separate and distinct concept from sex. They are interrelated concepts.” 

Zipps’ ruling should be affirmed, Rassi said, and the challenge from GOP leaders and Horne is invalid because they failed to offer convincing evidence of their stance. 

“(The state) failed to justify this law by showing that it was substantially related to legitimate governmental objectives,” Rassi said. “And it failed to show that it is substantially related to fairness in women’s sports or to safety to ban every single transgender girl in every single sport at every age level in every level of competition without regard to their individual circumstances.” 

The judges took the arguments under advisement, but didn’t offer any insight into when it would issue a decision on whether Roe and Doe can continue playing on teams that match their gender identities. A decision could come any day.