UPDATE 07/10
The hearing on Arizona's transgender student athlete law is taking place Monday, July 10 at the Tucson federal courthouse, with a federal judge hearing arguments over a possible temporary injunction on the law while litigation continues.
A team representing two transgender girls, both minors, is seeking a temporary injunction on the Arizona law banning transgender athletes from playing on the team of their choices.
The plaintiffs argued in court that the current law only takes into consideration biological sex, excluding other aspects of transgender identities—they argue that it’s good for the athletes' social development to be able to select the team of the gender with which they identify.
Superintendent of Public Instruction Tom Horne made the case in court that players should only play on teams of their biological sex, presenting evidence in which he says experts say pre-pubertal boys have a physical advantage over girls in sports. Horne’s team argued transgender girls blocking puberty doesn’t get rid of those physical advantages:
“Men and women do everything together. The one exception is sports. Why? Because males have advantages over females and that’s why they separated under Title 9, to give females a chance to excel in their sports and not have to compete against males,” Horne says.
Horne says athletes do have the option of playing on co-ed teams. Both sides are still waiting to hear when they will next appear in court. A decision could be expected soon.
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In March of 2022, then-Governor Doug Ducey signed SB 1165 — a bill that banned transgender students from playing on sports teams of the opposite sex.
That bill updated definitions in Arizona's law (A.R.S. 15-120.02), to prevent a transgender girl, from playing on a girl's sports team.
Against the ban
On April 17, 2023, the parents of two transgender athletes, 11 & 15, filed a lawsuit, in the U.S. District Court in Tucson, alleging the updated law violates the childrens' Title IX protections.
The suit alleging the ban also violates the Equal Protection Clause of the 14th Amendment because it discriminates based on the girls' transgender status, arguing being transgender is a sex-based trait.
READ THE PLAINTIFFS' FULL FILING HERE.
The plaintiffs also say the law discriminates based on sex, which is protected under Title IX.
The lawsuit also stated the ban "causes [the girls] to experience shame and stigma, denies them well-known physical and mental health benefits that arise from playing school sports..."
The plaintiffs argue gender dysphoria is "the distress caused by incongruence between a person's gender identity and their designated sex at birth."
They argue, "Under the medical standards of care for the treatment of gender dysphoria in adolescents, the only safe and effective treatment for gender dysphoria is to permit transgender adolescents to live consistent with their gender identity in all aspects of their lives."
Generations of children across America have enjoyed playing sports with their friends and classmates. They have benefited physically, mentally, socially, and developmentally from doing so. For many children, playing sports is an important part of their school experience. Plaintiffs want nothing more than an equal opportunity to enjoy that same experience: to try out for and participate on the girls’ volleyball, soccer, basketball, and cross-country teams at their schools. Arizona law, however, denies Plaintiffs that opportunity because Plaintiffs are transgender girls.
For the ban
On May 18, 2023, Superintendent of Public Instruction Tom Horne responds, arguing the law instead protects female athletes.
In his filing, Horne cited sworn testimony from Gregory A. Brown, Ph.D, in Hecox v. Little, where he said "a number of studies indicate males' athletic advantages over females begin before puberty, and may be apparent as early as six years of age."
READ THE DEFENDANTS' FULL FILING HERE.
Horne also cites biologically-female athletes being defeated by transgender athletes, such as Lia Thomas. Thomas was a swimmer who competed as a male for the University of Pennsylvania from 2017 to 2020, ranking 65th in the country for the 500-yard freestyle.
Thomas later transitioned and competed for the women's swim team, from 2021 to 2022. She won the national championship in women's 500-yard free style in 2022.
Horne said Thomas' participation "deprived" the women swimming against her of the opportunity to prove they were "the best female collegiate swimmer[s]..."
This case turns on one crucial fact: can plaintiffs prove that pre-puberty boys have no sports advantage over girls? They cannot... Even if Plaintiffs could prove that pre-puberty boys had no advantage, which they cannot, the state had a valid public purpose for passing the statute at issue.
Forty-five female athletes from the University of Arizona also support the ban. UofA's Women's Swim & Dive Team sent a letter to the NCAA Board of Governors, and the university in March of 2022.
In the letter, the team talked about Clenbuterol — an Anabolic Agent that promotes muscle growth. Clenbuterol is banned in sports, according to the U.S. Anti-Doping Agency.
READ THE FULL LETTER HERE.
Anabolic steroids are synthetic versions of testosterone. The letter argues transgender women who have had the benefits of testosterone throughout natural development have an edge over cisgender women who never did.
The letter also cites Duke's Center for Sports Law and Policy which showed an average of 10-12% performance gap between elite males and elite females.
We are celebrating the 50th anniversary of Title IX this year. From the birth of the NCAA in 1906 until 1972, women had to fight to earn the law that provided equal opportunities for women in sports. It took a male to female transgender person one year to take the women’s swimming national championship title. This is not equality. Women’s standings, titles, records, and scholarships are suddenly at risk again.
