Challenge to Arizona’s transgender school sports ban collapses as teen plaintiff withdraws

The lawsuit that sought to topple Arizona’s anti-transgender school sports ban is set to end, as the lone teen plaintiff steps back from the case that has dragged on for years. 

Rachel Berg, a senior staff attorney with the National Center for LGBTQ Rights who represented the teen, said that litigation is “grueling,” especially for young people. Berg pointed out that Jane Doe, as she’s called in court filings, first got involved when she started middle school. She’s starting high school now. 

“This case has been going on for three years,” Berg said. “It was filed when she was in middle school.”  

Without Doe to bolster the claims that the Arizona law is discriminatory, the case can’t move forward. The setback comes days after the U.S. Supreme Court preserved state-level trans athletic bans in Idaho and West Virginia, a decision that also complicated the legal path forward for the Arizona challenge.

In 2022, amid a national wave of anti-LGBTQ legislation, then-Gov. Doug Ducey signed the “Save Women’s Sports Act” into law. It prohibits trans girls across the state from joining school sports teams consistent with their gender identity. Republicans called the measure a “commonsense” protection, even as the Arizona Interscholastic Association, which oversees roughly 170,000 student athletes, testified at legislative hearings that it had received only 16 requests to participate from trans students in five years. 

A year later, Doe and another trans teen, called Megan Roe in court filings, filed a lawsuit against their schools and Superintendent of Public Instruction Tom Horne, arguing that the ban violated their constitutional rights. (Roe left the lawsuit when she graduated from high school and stopped playing sports in Arizona.)

What followed was three years of back and forth litigation, as Republican legislative leaders joined the legal battle when Arizona Attorney General Kris Mayes, a Democrat, refused to defend the law, and the rhetoric vilified the girls and other trans students for taking away opportunities from their cisgender peers. When a federal judge ruled that the girls should be allowed to play on school sports teams that reflected who they are, Republicans petitioned for that order to be paused, saying that Doe and Roe would “displace biological girls.” That request was denied, but subsequent appeals petitioned the U.S. Supreme Court to weigh in on the Arizona case. 

On June 30, the U.S. Supreme Court ruled that states have the right to ban trans girls from joining sports teams consistent with their gender identity. That same day, the justices lifted the order allowing Doe to keep playing school sports on teams with other girls and sent the issue back to the federal judge who had first issued it to reconsider the question in light of their latest decision. 

The legal battle had essentially been thrown back to square one. 

Republicans in Arizona hailed the high court’s ruling, and later, Doe’s withdrawal from the state-level legal challenge, as a win. 

“This is a victory for girl athletes and for common sense,” Horne said in a written statement celebrating Doe’s decision to dismiss the lawsuit. 

But shortly after the U.S. Supreme Court’s ruling and with Doe still on board, Berg remained adamant that the Arizona lawsuit still had a path forward. 

“Our case in Arizona involves different factual and legal theories than the cases at the Supreme Court,” Berg said during a June 30 interview.

Challengers of the Idaho and and West Virginia laws argued that the bans violated the equal protection guarantee in the 14th Amendment of the U.S. Constitution and the prohibition on sex discrimination in Title IX, a federal law that was previously interpreted to include gender-based discrimination under the Biden administration. The justices weren’t convinced by that reasoning. 

While those arguments were also present in the Arizona case, Doe’s attorneys also said that the ban violates the Americans with Disabilities Act. That’s because Doe has gender dysphoria, a condition she was diagnosed with when she was seven years old. Gender dysphoria is defined as the distress that occurs when a person’s gender identity and biological sex are incongruent. Treatment for the condition is gender-affirming care, which ranges from medical solutions like hormone therapy and puberty blockers to social acceptance like using a person’s proper pronouns. Forcing trans girls like Doe to play on boys sports teams directly undermines that treatment, which has been endorsed by multiple top medical associations. 

The argument that trans athletic bans conflict with the ADA remains untested in court. And while Doe’s withdrawal from the Arizona lawsuit means it won’t be debated in the Grand Canyon State in the near future, it could still arise at a later date. Berg said the National Center for LGBTQ Rights would be open to representing another trans Arizonan student if the opportunity arises. 

“This fight is not over,” she said. 

But a Republican strategy to shield the state’s trans athletic ban may complicate that future fight even further. This year, Republican lawmakers in Arizona approved a ballot measure that asks voters to weigh in on whether trans students should be barred from school sports teams, bathrooms and locker rooms that reflect their gender identity. 

Under state law, trans girls are already prohibited from joining school sports teams consistent with their gender identity. But if voters approve the new ballot measure, it would be protected by a provision in the Arizona Constitution that bars lawmakers from repealing voter-approved laws. 

A progressive political action committee is currently attempting to convince a Maricopa County Superior Court judge to prevent the ballot measure from showing up on the November ballot, arguing that it’s discriminatory. A hearing in that legal challenge has been set for July 16.