Another state law protecting girls’ sports is hanging in the balance while a lawsuit over it plays out in court.
Yesterday, a three-judge panel of the Ninth Circuit Court of Appeals upheld a district court’s preliminary injunction blocking the enforcement of Arizona’s SAVE Women’s Sports Act against two transgender girls who challenged it with their parents last year.
The Act prohibits biological males from participating in female sports.
The appeals court agreed with the district court’s findings that transgender girls who have not undergone male puberty do not have an athletic advantage over other girls.
Mary wrote about a successful challenge to a similar West Virginia statute here, where the court also granted an injunction. West Virginia has petitioned the United States Supreme Court to hear that case.
In the Arizona lawsuit, the two transgender plaintiffs, ages 11 and 15, had not gone through male puberty and wanted to play on girls’ sports teams at their schools. They were both diagnosed with gender dysphoria and placed on puberty blockers when they were just 11 years old.
The students claimed the Act violated their constitutional and civil rights under the Equal Protection Clause of the Fourteenth Amendment and Title IX. The appeals court based its ruling on the equal protection claim.
Writing for the panel, Judge Morgan Christen said the Act does not afford transgender women and girls equal athletic opportunities, because while it permits cisgender women and girls to play on any teams, male or female, transgender women and girls are permitted to play only on male teams. It also permits all students other than transgender women and girls to play on teams consistent with their gender identities. “Transgender women and girls alone are barred from doing so.”
“This is the essence of discrimination,” Judge Christen said.
Laws like the Act that discriminate based on gender identity are subject to “heightened scrutiny,” the judge explained. Under that standard, the state has to show a substantial relationship between the law and its objective—ensuring fairness and equal opportunity for female athletes.
On review, the appeals court has to defer to the lower court, unless its findings were “clearly erroneous.”
And, agree or disagree with the outcome, the district court’s findings were “firmly grounded in evidence in the record,” Judge Christen said. It found that before puberty, there are no significant differences in athletic performance between boys and girls. And yet, “the ban applies to transgender kindergartners who are too young to have experienced male puberty.”
The lower court acknowledged studies showing that prepubertal boys outperform prepubertal girls on school physical fitness tests, but there was no basis to attribute those “small differences” to physiology or anatomy as opposed to other factors “such as greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of the boys and girls surveyed.”
The “biological driver of average group differences in athletic performance between adolescent boys and girls is the difference in their respective levels of testosterone, which only begin to diverge significantly after the onset of puberty,” the district court found.
Given these well-supported factual findings, and the court’s limited and deferential review, Judge Christen held that the district court did not clearly err when it found transgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls.
And it properly concluded that the state appellants are unlikely to show that the Act’s “sweeping transgender ban” is substantially related to the State’s objectives in ensuring competitive fairness and equal athletic opportunity for female student-athletes, the appeals court also held.
For now, the court’s injunction only applies to the two transgender plaintiffs while the litigation goes forward.
States have an interest in “completing the still unfinished and important job of ensuring equal athletic opportunities for women and girls, who must have an equal opportunity not only to participate in sports but also to compete and win,” Judge Christen acknowledged. But whether Arizona can guarantee those opportunities through the SAVE Act remains to be seen.
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