LGBTQ Legal Issues
9th Circuit allows 2 transgender girls to play on sports teams that align with their gender identity
A federal appeals court on Monday ruled that two transgender girls in Arizona should be allowed to play on school sports teams that are consistent with their gender identity. (Image from Shutterstock)
A federal appeals court on Monday ruled that two transgender girls in Arizona should be allowed to play on school sports teams that are consistent with their gender identity.
The 9th U.S. Circuit Court of Appeals at San Francisco said the transgender plaintiffs were likely to succeed on their claim that the ban violates the equal protection clause of the 14th Amendment.
The appeals court banned enforcement of Arizona’s Save Women’s Sports Act against the girls while litigation continues. The law bans those who are identified as men at birth from playing on women’s interscholastic or intramural sports teams from kindergarten through graduate school.
The author of the Sept. 9 opinion is Judge Morgan Christen, an appointee of former President Barack Obama.
On its face, the law discriminates based on transgender status, the appeals court said. As applied to the girls, the law does not survive strict scrutiny, the 9th Circuit concluded.
“The act’s transgender ban applies not only to all transgender women and girls in Arizona, regardless of circulating testosterone levels or other medically accepted indicia of competitive advantage, but also to all sports, regardless of the physical contact involved, the type or level of competition or the age or grade of the participants,” Christen wrote. “Heightened scrutiny does not require narrow tailoring, but it does require a substantial relationship between the ends sought and the discriminatory means chosen to achieve them.”
The girls had not gone through male puberty, were taking puberty-blocking medication and were undergoing hormone therapy. The opinion says their ages are 11 and 15, while Courthouse News Service said they are 12 and 16.
The 9th Circuit upheld district court findings that before puberty, there are no significant differences in athletic performance between boys and girls, and that transgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls.
The appellants were Arizona’s superintendent of public instruction and several state lawmakers. They had argued that the district court wrongly treated as insignificant small differences in athletic ability between boys and girls before puberty.
But the appeals court said the appellants overlooked findings that small differences identified in some studies “have not been shown to be attributable to biological rather than sociological factors.”
The girls were represented by the National Center for Lesbian Rights, a nonprofit public interest law firm, according to a Sept. 9 press release.
Rachel Berg, a lawyer with the group, told Tuscon.com that the ruling applies only to the plaintiffs, but it 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,” Berg said. “It does so regardless of their individual circumstances. The 9th Circuit recognized that just because somebody is transgender tells you nothing about whether they have an athletic advantage.”
Tom Horne, the Arizona schools chief, told Tucscon.com that the 9th Circuit “is very left wing,” and the appellants will have to take the case to the U.S. Supreme Court if they want to win.
The Associated Press also has coverage of the decision.
The case is Doe v. Horne.
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