By Rachel Alexander
A judge has blocked Arizona’s new law prohibiting transgender athletes from participating in girls’ sports from going into effect. U.S. District Court Judge Jennifer Zipps, who was appointed to the bench by President Barack Obama, issued the injunction on Thursday after a lawsuit was filed by two anonymous transgender athletes. Superintendent of Public Instruction Tom Horne said he will appeal the ruling.
Arizona Women of Action issued a response afterwards to the ruling. “Title IX was enacted to protect girls,” the group said in a statement. “To give them equal rights to fair competition, safety, and future opportunities. Arizona’s Save Women’s Sports Act was enacted to solidify the intent of Title IX — to protect biological girls. Sadly, the judge ruled NOT to protect girls OR Arizona / US law.”
The lawsuit was brought against the state by two anonymous transgender students alleging violations of the Equal Protection Clause and Title IX.
Attorney General Kris Mayes declined to defend the state against the lawsuit, prompting Senate President Warren Petersen (R-Mesa) and House Speaker Ben Toma (R-Peoria) to intervene in place of her.
The Save Women’s Sports Act, A.R.S. 15-120.02, went into effect on September 24, 2022, and applies to both public and private schools, K-12, and higher education. This past year, the older transgender plaintiff “was allowed to practice as a member of the team, but not allowed to participate in TGS interscholastic competitions (games).” Previously, “Each school or school district set its own rules on transgender students’ participation in intramural sports.”
In her 35-page Order on Motion for Preliminary Injunction and Findings of Fact and Conclusion, Zipps claimed that there was no evidence that any girl had ever been denied an opportunity to compete in sports in the school district due to a transgender.
Zipps said it was a finding of fact that “There is a consensus among medical organizations that gender identity is innate and cannot be changed through psychological or medical treatments.” She defined “gender identity” as “a person’s internal, innate, deeply held sense of their own gender.” Another finding of fact Zipps claimed was that “Every major medical association in the United States agrees that medical treatment for gender dysphoria is necessary, safe, and effective.”
She warned, “Untreated gender dysphoria can cause serious harm, including anxiety, depression, eating disorders, substance abuse, self-harm, and suicide,” adding, “Being denied recognition and support can cause significant harm, exacerbate gender dysphoria, and expose transgender adolescents to the risk of discrimination and harassment.”
She went on, “Attempts to ‘cure’ transgender individuals by forcing their gender identity into alignment with their birth sex are harmful and ineffective.” Zipps asserted, “It would be psychologically damaging for a transgender girl to be banned from playing school sports on equal terms with other girls.”
She dismissed evidence provided by the defense that transgenders playing in girls’ sports “have performance advantages that place other girls at a competitive disadvantage or at risk of injury.” In regards to defense expert Dr. Gregory Brown, a University of Nebraska professor, Zipps stated, “The Court is not concerned with Dr. Brown’s opinion that such advantages [of] testosterone suppression … are … reduced only modestly.”
In response to evidence provided by the defense showing that young boys perform better than young girls in sports, Zipps claimed the opposite was true. She cited researchers “studying child and youth swimmers and concluding that the data suggests ‘girls are faster, or at least not slower, than boys prior to the performance-enhancing effects of puberty.’”
She said societal influence will determine how well transgenders perform, not their biological gender. “There is no basis for these experts to attribute those small differences to physiology or anatomy instead of to other factors such greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of the boys and girls surveyed,” Zipps said. “[Transgenders will be] subject to the same social/cultural factors that girls face that correlates to lower physical fitness scores.”
Zipps also dismissed the assertion that girls are more likely to be injured by biological males than biological females while playing sports. “[T]he Court has found that Plaintiffs do not have a competitive advantage over other girls, and they do not pose a safety risk,” she said. Although Zipps said the biological differences result in “minimal or nonexistent” differences in athletic ability, she did not attempt to explain why there are separate boys’ and girls’ sports teams. She explained away biological differences in various ways, such as “some girls may be taller than average, and some transgender girls may be taller than average.”
She did not address the fact that some transgenders may not take puberty blockers on a regular schedule, or may completely go off them yet continue playing sports. A study cited in the National Institutes of Health found that 80 percent of youth who identify as transgender revert to their biological gender by age 18.
Zipps asserted, “Less than one percent of the population is transgender, with male and female transgender people being roughly the same in number.” However, a Gallup poll taken earlier this year showed that the number is increasing. Among Gen Z, about 2 percent identify as transgender.
Zipps cited testimony during legislative consideration of the bill by then-State Senator Vincent Leach (R-Tucson), explaining his vote for the bill by stating, “if we allow transgenders to take over female sports, you will not have females participating.”
The 15-year-old transgender plaintiff, named Megan Roe in the lawsuit, began receiving puberty-blocking medication at age 11 and hormone therapy at age 12, the pleadings stated. They said Megan has developed “physiological changes associated with puberty in females.” Megan “intends to try out for the girls’ volleyball team at TGS for this year’s fall season.”
The 11-year-old transgender plaintiff, known as Jane Roe, started receiving puberty blockers last month. Due to this, “Jane has not and will not experience any of the physiological changes that increased testosterone levels would cause in a pubescent boy.” Jane “intends to participate and compete with the cross-country team and try out for the girls’ soccer and basketball teams” in the Kyrene School District.
Regarding the Equal Protection claim, Zipps concluded that “There is a strong presumption that gender classifications are invalid.” She said the law required “heightened scrutiny,” which is an intermediate level of scrutiny between strict scrutiny and rational basis review. She said the higher standard is justified because “The legislative history demonstrates that the purpose of the Act is to exclude transgender girls from girls’ sports teams.” Zipps asserted that the law wouldn’t even withstand the rational basis test because “it is not related to any important government interest.”
As to the Title IX claim, Zipps stated that discriminating against someone based on being transgender is the same as discriminating against someone based on sex, citing a recent decision by the Ninth Circuit Court of Appeals regarding a gay university student who said he was harassed and bullied.
Finally, Zipps claimed that the plaintiffs would suffer “irreparable harm” if the injunction was not granted. “Plaintiffs’ mental health is dependent on living as girls in all aspects of their lives,” she said.
There are 22 states with laws banning transgender students from participating on sports teams alongside the gender they were not born with.
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to rachel.r.alexander@gmail.com.