PHOENIX — Arizona has not shown a legitimate reason to categorically ban transgender girls from participating in girls’ sports, the 9th Circuit Court of Appeals ruled Monday.
In a 55-page decision, the three-judge panel rejected claims by state schools chief Tom Horne that there are legitimate reasons for the 2022 law that spells out that teams designated for women or girls “may not be open to students of the male sex.” And by “sex,” the law means the one assigned at birth based on a baby’s sex organs.
Strictly speaking, Monday’s ruling affects only two transgender girls in Arizona who want to participate in sports, one a student at Kyrene Aprende Middle School and another attending the Gregory School, a private school in Tucson. The judges said they have been medicated to block hormones and there is no evidence presented either had a physical advantage over those born female.
Even at that, it simply orders they be allowed to participate in girls’ sports while the litigation progresses through the court system — litigation that just this past week that a justice of the U.S. Supreme Court concluded will require House Speaker Ben Toma and Senate President Warren Petersen to testify about their motives and turn over documents about the approval of the law.
But Rachel Berg, an attorney with the National Center for Lesbian Rights that represents the pair, said the effects — and the precedent set — is crucial for others in the same situation.
“The 9th Circuit recognized that the law is unconstitutional because it’s a categorical ban on all transgender girls from playing on school sports teams,” she said.
“It does so regardless of their individual circumstances,” Berg continued.
“The 9th Circuit recognized that just because somebody is transgender tells you nothing about whether they have an athletic advantage.”
Horne said the ruling is not a surprise.
“The 9th Circuit is very left wing,” he told Capitol Media Services.
“They’re the most reversed circuit in the country,” Horne said, saying if he’s going to win this he’s going to have to go to the Supreme Court.
The schools chief also accused the court of ignoring evidence he presented about the biological advantage of transgender girls — at any age.
But appellate Judge Morgan Christen, writing for the court, said evidence presented when the case first went to trial does not back that contention.
She also noted the ban does not consider individual circumstances, affecting everyone from kindergarten through graduate school. It also covers all sports, including intramural games, regardless of whether physical contact is involved.
“Significantly, the ban turns entirely on a student’s transgender or cisgender status, and not at all on other factors like levels of circulating testosterone,” Christen wrote.
What it also does is override the policies of the Arizona Interscholastic Association which, until the law was passed, made decisions on a case-by-case basis. Those rules allow transgender girls to play on girls’ teams when a committee of experts found “that the student’s request is appropriate and is not motivated by an improper purpose and there are no adverse health risks to the athlete.”
Christen said this has hardly created a flood.
“In the dozen or so years before adoption of the act, the AIA approved just seven transgender students to play on teams consistent with their gender identities — a tiny number when compared to the roughly 170,000 students playing sports in Arizona each year,” the appellate judge wrote.
The judge also noted the state law overrules regulations of the National Collegiate Athletic Association. That organization has a sport-by-sport approach that also requires transgender students to document sport-specific testosterone levels at the beginning of the season and then six months in.
What the Arizona law does, Christen wrote, is replace that with its one-size-fits-all approach. So the law applies, she said, to children who are too young to have gone through puberty, transgender women and girls who have received puberty-blocking medication and hormone therapy and have never gone through male puberty, and transgender girls who have experienced male puberty but have received sustained hormone therapy to suppress circulating testosterone levels.
Horne, for his part, said there is justification for a blanket rule versus a case-by-case basis.
“If you watch kids on the playground, the third-graders, the boys are going to do better at athletics than the girls,” he said.
“What the data show is that even prepubescent boys have an advantage over girls,” Horne said. “In fact, any elementary school gym teacher will tell you that.”
He also took a shot at an expert witness called on behalf of the transgender girls.
“He’s a doctor who’s performed hundreds of operations on these people,” Horne said.
“So he’s defending his business,” the schools chief said. “It’s a pretty tawdry business in my opinion.”
Christen acknowledged Horne cited “a handful of studies” suggesting that prepubescent boys may be taller, have more muscle mass, less body fat or have greater shoulder internal rotator strength than prepubescent girls.
“These studies, however, neither attributed these differences to biological rather than sociological factors nor concluded that these differences translated into competitive academic advantages,” Christen wrote. That, the court concluded, includes greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of boys and girls surveyed.
The judge also said other studies cited by Horne have their own flaws.
One of those says transgender females who receive puberty blockers have advantages over cisgender females in lean body mass, grip strength and height,
“But appellants overlook that in these studies, male puberty was only partially blocked,’’ Christen wrote.
“In the lean body mass study, for example, the transgender women participants had much more testosterone exposure than transgender girls treated with modern protocols because they started puberty blockers at an average age of 14.5 years,” she said. And one study about height, the judge said, the girls had received puberty blockers from around age 13 and cross-sex hormones at 16 — far later than the girls who are challenging the Arizona law.
Christen said the way the law is worded, it actually allows other students — women, girls, cisgender men and boys, and transgender men and boys — to participate in sports that correspond with their gender identifies.
“Only transgender women and girls are barred from doing so,” she wrote. “The act discriminates on its face based on transgender status.”
Nor was the appellate court swayed by the fact the law would allow transgender girls to play on boys’ teams.
Christen cited the findings of U.S. District Court Judge Jennifer Zipps who issued the initial ruling allowing the two transgender girls to play girls’ sports. Zipps said the two have “athletic capabilities like other girls their age” and would find playing on a boys’ team “humiliating and embarrassing.”
“In fact, the (trial) court found that participating in sports on teams that contradict one’s gender is equivalent to gender identity conversion efforts, which every major medical association has found to be dangerous and unethical.”
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