Supreme Court ruling on Arizona transgender girls in sports will have to wait

By Howard Fischer
Capitol Media Services
PHOENIX -- A decision on whether transgender girls in Arizona will be able to participate in girls' sports will have to wait.
The U.S. Supreme Court ended its term Monday ignoring a bid by state officials to strike down a federal court ruling upholding a preliminary injunction that bars Arizona from enforcing its Save Women's Sports Act.
That 2022 law 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.
But Monday's action -- or inaction -- by the nation's high court may not be the last word.
The justices could decide as early as Thursday whether they want to hear legal arguments from state officials seeking overturn lower court rulings voiding the law when their new term begins in October from not just Arizona but also from Idaho and West Virginia. Or they could simply decided to let stand lower court rulings against the state.
For the moment, though, the two transgender girls in Arizona who are at issue in this case continue their ability to play on girls' teams, one at the Gregory School in Tucson the other at Kyrene Aprende Middle School in Chandler.
Ultimately, though, the outcome of the legal wrangling will determine if Arizona is entitled to enforce its law -- and the breadth of that enforcement.
What's behind the 2022 law is the argument that males have an inherent strength edge over females. That, according to proponents, makes it unfair for those who were born as boys to compete against biological girls.
Nothing in the 2022 law affected most athletes in the state.
What it did do, though, is overrule what had been the practice of the Arizona Interscholastic Association to allow transgender girls to participate in girls sport only after getting approval of a committee of medical and psychiatric experts to determine if permission was sought for an improper purpose.
That approval was rare: According to court records, in the decade prior to the litigation, the AIA fielded just 12 requests from transgender students seeking to play on teams consistent with their gender identify -- and approved just seven. That's out of about 170,000 students who play sports in Arizona each year.
And seeking to avoid the debate about physical strength, this lawsuit filed in 2023 involves two transgender girls who, according to their lawyers, have not yet entered puberty and have been taking puberty blockers.
U.S. District Court Judge Jennifer Zipps agreed the law should not be enforced against them. In entering a preliminary injunction, she said the two have "athletic capabilities like other girls their age'' and would find playing on a boys' team "humiliating and embarrassing.''
What's before the Supreme Court is a 9th Circuit Court of Appeals upheld that ruling.
Appellate Judge Morgan Christen, writing for the court, said the ban does not consider individual circumstances, affecting everyone from kindergarten through graduate school. And 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.
State schools chief Tom Horne, who is defending the law, has argued 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.''
Christen, in that 9th Circuit ruling, acknowledged that 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 students, 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.
And there's something else that ultimately could determine then outcome of the case.
Christen said the way the Arizona 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 identities.
"Only transgender women and girls are barred from doing so,'' she wrote. "The act discriminates on its face based on transgender status.''
It is that 9th Circuit ruling that awaits a decision by the Supreme Court whether the justices want to review it.
Rachel Berg, one of the attorneys representing the transgender girls, said there's a good reason the high court should not get involved -- at least at this point. She said the justices should wait for a final ruling by Zipps on whether to permanently block the 2022 law.
That case has been fully briefed but there is no specific date for a ruling.
The debate before the high court also comes on the heels of its ruling that Tennessee is free to bar gender affirming medical care for minors like hormone treatment. In that case, the majority concluded the Tennessee law was about regulating the practice of medicine, not sex discrimination.
But in a new court filing last week, lawyers for the two girls told Zipps that ruling should have no effect on what she decides. And at least one reason is that there's a significant difference in the Arizona case: It is based, at least in part, on claims that Arizona lawmakers, in enacting the 2022 law, "acted with discriminatory intent,'' a factor not in the Tennessee case.
A finding of an improper motive could prove crucial.
In fact, the Supreme Court, in an earlier ruling, agreed to allow the attorneys for the transgender girls to question under oath both Senate President Warren Petersen and Ben Toma, who had been speaker of the House at the time of the measure' passage. The high court also agreed with an order by Zipps to require the pair to surrender documents in their possession about the enactment of the law, including one that the trial judge said has "talking points'' about the statute.
Those depositions and documents, which could help Zipps decide if illegal discrimination was behind the 2022 law, currently remain sealed.
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