By Howard Fischer
Capitol Media Services
PHOENIX -- Top legislative Republicans have hired an out-of-state attorney -- at taxpayer expense -- to defend a 2022 law that forbids transgender girls from participating in girls' sports.
In new pleadings filed in federal court, Justin Smith of St. Louis told U.S. District Court Judge Jennifer Zipps that Senate President Warren Petersen and House Speaker Ben Toma have a legal right to intervene in the lawsuit. That, he said, is because state Attorney General Kris Mayes disqualified herself from defending the statute.
Mayes on Tuesday acknowledged bowing out, telling Capitol Media Services that it was clear that her views on defending the lawsuit did not align with those of Tom Horne, the state schools chief who is named as a defendant in the case.
Horne has publicly stated his support for the law. So Mayes instead gave him permission to hire his own attorney.
But Smith told Zipps that Horne has yet to file any legal papers in the case "despite an imminent briefing deadline on plaintiffs' motion for preliminary injunction.''
"In fact, no other party has filed an entry of appearance to defend the statutes at issue,'' he wrote.
And Smith said that even if and when Horne takes action -- the schools chief said he has hired a Phoenix law firm -- that won't be enough. He said Petersen and Toma have "unique (ITALICS) legislative (ROMAN) interests'' in defending the validity of the law, interests that may differ from those of Horne.
The statute requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And, more to the point, it specifically says that teams designated for women or girls "may not be open to students of the male sex.''
Proponents said that males have an inherent biological advantage.
Approval came despite the fact that the Arizona Interscholastic Association which governs high school sports already had protocols to handle requests by transgender athletes to participate in sports on a case-by-case basis. Factors included a student's "gender story,'' including the age at which they became aware of the "incongruence'' between the sex assigned at birth and gender identity, and whether the student is undergoing gender transition.
And Dr. Kristina Wilson, who was on the AIA's medical advisory board, testified that out of 170,000 high school athletes there had been just 16 requests by transgender individuals to compete.
None of that convinced then-Gov. Doug Ducey who, in signing the measure, lashed out at the organization for even allowing any transgender youth to participate.
"It's a shame that the AIA and the NCAA (which governs college sports) won't speak out on these,'' he said. "So we did in Arizona.''
In explaining the new move to intervene to defend the law, Petersen said in a prepared statement that it's simply a matter of fairness.
"Female athletes deserve equal opportunities in sporting events, which will not happen so long as males are allowed to compete against them,'' he said.
But the lawyers for the two transgender girls said that isn't the case, at least not here.
One is an 11-year-old who attends an elementary school in the Kyrene School District and is set to attend Aprende Middle School in July where she would like to try out for girls' soccer and other teams. Her lawyers say she has "lived her life as a girl'' since she was 5.
They also said she has not started puberty, meaning she "has not experienced any of the physiological changes, including muscle development, that increased testosterone levels would cause in a pubescent boy.''
The other is a 15-year-old transgender girl who attends The Gregory School, a private school in Tucson.
Lawyers said the girl's parents informed administrators and teachers of her transgender status before enrolling her. And she has been on puberty-blocking medication since age 11.
In that case, the lawsuit says the school would permit the girl to try out for the girls' volleyball team -- if it were not for the 2022 law.
The attorneys contend that the statute, at least as it applies to these two girls, violates constitutional requirements for equal protection under the law.
"Plaintiffs, who identify and live as girls and who have not and will not undergo male puberty, are similarly situated to other girls with respect to their participation on girls' sports teams at school,'' the lawsuit states.
It also alleges the statute violates Title IX, a federal law that prohibits discrimination in education programs based on sex.
"Neither Title IX, its regulations, nor its guidance purport to define 'sex' as something that is determined at fertilization and revealed at birth or in utero,'' the lawyers are telling the judge.
Petersen, in his statement, did not address the two specific cases cited in the lawsuit and ignored the arguments about strength being tied to puberty.
"Science is clear that male athletes have many inherent physical advantages over females, including greater size, stronger muscles and larger bone structure,'' he said.
"By allowing males to compete against females, we're essentially subjecting young girls to greater risk of injury, as well as stripping them of athletic opportunities their female predecessors have long fought for.''
Horne, for his part, said he's ready to address the arguments that these two transgender girls have no inherent advantage.
"We're going to be compiling medical evidence that shows that, even in that situation, the biological males have an advantage,'' he said.
Beyond the merits of the dispute, Petersen also took a swat at the National Center for Lesbian Rights, one of the law firms representing the two plaintiffs, calling it "a radical activist organization.''
Rachel Berg, a staff attorney at the organization disputed that description.
"NCLR is a legal organization for LGBTQ people and their families,'' she said, saying it has fought on their behalf for more than 40 years. Petersen did not respond to questions asking that he justify his description of NCLR.
That issue of gender identity is back before Arizona lawmakers again this year.
SB 1040 would require public schools to provide a "reasonable accommodation'' to any person who is "unwilling or unable'' to use a multi-occupancy restroom or changing facility designated for that person's sex. And that is defined as someone's "immutable biological sex as determined by anatomy and genetics existing at the time of the person's birth.''
SB 1001 would bar school employees from addressing a student younger than 18 by a pronoun that is different than the person's "biological sex'' unless there is first permission from a parent.
Both measures have been approved by the Senate and await final House action.
Gov. Katie Hobbs already has vetoed SB 1005 which dealt with the ability of parents to sue schools over perceived violations of parental rights while minimizing the risk of being held liable for legal fees. The Human Rights Campaign said the measure would have increased the threat of schools being sued for providing support for LGBTQ students.
The whole issue of transgender youths resulted in an uncomfortable situation for Hobbs' predecessor.
Several days after signing this bill and another banning gender affirming surgery for anyone younger than 18, the governor dodged direct questions on whether he believes transgender people actually exist.
"I'm going to ask you to read the legislation and to see that the legislation that we passed was really in the spirit of fairness to protect girls in competitive situations,'' the governor responded to the first inquiry. "That's what the legislation is intended to do, and that's what it does.''
Asked again if he believes there are "actual transgender people,'' the governor again answered slowly and carefully.
"I ... am going to respect everyone, and I'm going to respect everyone's rights,'' Ducey said.
"And I'm going to protect female sports,'' he continued. "And that's what the legislation does.''
Zipps has yet to set a date to hear the legal arguments.
