By Howard Fischer
Capitol Media Services
PHOENIX -- The state's top two Republican lawmakers are asking a federal appeals court to protect them from having to explain their motives in promoting and voting to ban transgender girls from participating in girls' sports.
The attorney for House Speaker Ben Toma and Senate President Warren Petersen contends that U.S. District Court Judge Jennifer Zipps got it wrong when she ordered them to answer questions from the lawyers representing transgender girls who have sued to overturn the law.
Justin Smith, the private attorney the pair has hired, acknowledged that they asked to become parties to the lawsuit rather than simply let state schools chief Tom Horne defend the 2022 ban. But he said that decision does not waive -- or override -- what he said is the privilege that lawmakers have against having to explain their motives in court.
What the 9th Circuit rules could prove crucial.
Generally speaking, the motives behind legislation are irrelevant to its legality. Courts judge each challenged law on whether it is illegal or unconstitutional.
And Smith cited cases, going back more than a century, which have protected lawmakers from having their motives questioned.
But in this case the challengers said the ban violates the Equal Protection Clause of the U.S. Constitution. And Zipps said that these kinds of cases can be judged not only on the letter of the law but also whether legislators "acted with discriminatory intent'' in approving it.
"This discovery may shed light on whether the Arizona legislature acted with a constitutionally permissible purpose in enacting the law,'' Zipps said in issuing her order last month.
And the judge said the fact that Toma of Peoria and and Petersen of Gilbert decided to intervene in the case only strengthens her decision that they, just like any other party to a civil lawsuit, have to submit to depositions and turn over certain documents.
The case most immediately affects two transgender girls who challenged the 2022 law.
It 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 the law is justified based on arguments that males have an inherent biological advantage.
Zipps already has blocked the state from enforcing the law against the two transgender girls, one set to attend Kyrene Aprende Middle School and the other attending the private Gregory School in Tucson. She said the statute violates Title IX, the federal statute that bars discrimination based on sex in educational opportunities.
But still pending is whether Zipps will make that order permanent. Potentially more significant, a ruling in this case about these two plaintiffs could set the stage for similar challenges to the law by others affected statewide.
Attorney General Kris Mayes declined to defend the law, telling Capitol Media Services that it was clear her views on defending the lawsuit did not align with those of state schools chief Tom Horne who is named as a defendant in the case. But she did allow Horne to hire his own attorney.
Horne has actively defended the law, saying it protects biological girls from unfair competition and ensures they are not injured by those who are stronger and more powerful. He also rejected arguments that these two girls have no advantage because they are either prepubescent or are taking puberty blockers.
But Toma and Petersen decided they wanted their own voice in the case, hiring an attorney at taxpayer expense to argue they have "unique legislative interests'' in defending the validity of the law, interests that may differ from those of Horne. And that, in turn, opened the door to lawyers for the plaintiffs requesting documents related to the passage of the law as well as seeking to interview both.
In filings with the 9th Circuit, Smith, the attorney for the GOP lawmakers, said there is a need for them to block Zipps' order -- and do that now, rather than waiting until later to decide whether her order was proper after what they have said may have become public.
"The legislative leaders will suffer damage and prejudice that cannot be corrected on appeal,'' he told the appellate court. "Information disclosure cannot be undone, and the intrusion of a deposition is not correctable even if testimony is excluded at trial.''
Smith said Zipps was wrong in concluding that the decision by Toma and Petersen to intervene and become parties to the lawsuit meant they opened themselves up for being questioned.
He said the U.S. Supreme Court has concluded that legislative privilege can be waived only by an "explicit and unequivocal renunciation,'' something he said has not occurred here. Smith said the mere fact of participating in legislation doesn't reach that level.
"A plaintiff does not waive attorney-client privilege by filing a lawsuit, and a legislator does not waive legislative privilege by intervening in a lawsuit,'' he said.
And then there's something else.
"Allowing high-ranking legislators to be deposed about their motives because they intervened to defend state law implicates constitutional concerns involving the separation of powers,'' Smith told the appellate court.
Zipps, in her ruling last month, said it was the claim of Toma and Petersen of their "unique legislative interests'' in defending the law that opened the door to them being questioned.
"(They) put their legislative intent at issue in their assertions that (1) the law does not discriminate on the basis of transgender status, and (2) the purpose of the law is to 'redress past discrimination against women in athletics' and 'promote equity of athletic opportunity between the sexes' in school sports,'' the judge wrote.
All that, she said, relates directly to the fact that the lawsuit alleges a violation of the Equal Protection Clause.
"The government must establish that its sex-based classification is substantially related to an important government objective,'' the judge concluded, putting the burden on the state to justify the law and making the motives behind it legally relevant.
Zipps already has ruled that Title IX -- the federal law that prohibits discrimination based on sex in education opportunities -- also applies to transgender girls, those who were born male.
The documents issue is somewhat different.
Smith said the GOP leaders have produced more than 400 documents and 1,100 pages of records. But they have withheld five as "privileged,'' saying they were created by other legislators who are not parties to the lawsuit.
Zipps said those withheld documents consist of emails to state lawmakers about the enactment of the law, including "one with talking points'' about the statute.
No date has been set for a hearing.
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