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PHOENIX (CN) — A Ninth Circuit panel on Monday sided with a group of transgender Arizona student-athletes and confirmed a federal ruling that will for now allow student-athletes to play on sports teams that align with their gender identity rather than biological sex.
In a unanimous opinion, the three-judge panel affirmed a lower court’s decision to grant preliminary injunction to two transgender girls challenging Arizona’s Save Women’s Sports Act, which would require them to play boys’ sports rather than girls’ sports. Arizona public schools are enjoined from enforcing the 2022 law pending further litigation.
“Transgender girls who have not undergone male puberty do not have an athletic advantage over other girls,” U.S. Circuit Judge Morgan Christen wrote in the 55-page opinion, echoing the preliminary injunction.
The panel also found that the ban unfairly targets transgender girls and has no effect on other genders.
“Although the act purports to ban all ‘students of the male sex’ from female-designated athletics, including both cisgender male students and transgender female students, the act in fact has no effect on the ability of cisgender men and boys to engage in female sports, because they were already excluded from female sports under the pre-act status quo,” wrote Christen, a Barack Obama appointee. “But the act has a profound impact on transgender women and girls.”
The ban says nothing about transgender boys playing boys’ sports.
“We are pleased with the Ninth Circuit’s ruling today, which held that the Arizona law likely violates the Equal Protection Clause and recognizes that a student’s transgender status is not an accurate proxy for athletic ability and competitive advantage,” Rachel Berg, an attorney for the National Center for Lesbian Rights representing the plaintiffs, told Courthouse News in an email. “Our clients are thrilled to be able to continue to play on girls’ sports teams with their friends while this case proceeds to trial.”
Jane Doe, 12, plays girls’ soccer at Kyrene Aprende Middle School in Chandler, Arizona. She was diagnosed with gender dysphoria at 7 and has lived her life as a girl since 5. Megan Roe, 16, plays girls’ volleyball for the Gregory School in Tucson, Arizona. She was diagnosed with gender dysphoria when she was 10 and has been on puberty blockers since she was 11 and received hormone therapy since she was 12.
Neither student-athlete has undergone male puberty, which they successfully argued moots any idea of an unfair physical advantage.
Fearing they’d be denied athletic participation by the recent ban, the girls’ parents sued the schools, their respective districts and Arizona Superintendent of Public Instruction Tom Horne, claiming it violates the 14th Amendment, Title IX and the Americans with Disabilities Act, which classifies gender dysphoria as a mental disability.
U.S. District Judge Jennifer Zipps, a Barack Obama appointee, granted the plaintiffs a preliminary injunction last year, finding they are likely to win on the merits in the event of a trial. Arizona House Speaker Ben Toma and Senate President Warren Petersen, intervening on the defendants’ side, appealed the ruling the next day, asking that the injunction be stayed pending the appeal.
Zipps declined to stay the injunction and denied a separate motion to dismiss in June. Three months later, the Ninth Circuit panel concurred, now allowing the girls to continue playing for their school teams while the litigation pends.
“Senate and House Republicans stand in solidarity to protect women and girls from the injustices being attempted against them by the extreme left," Petersen said in an email to Courthouse News. “Female athletes deserve equal opportunities in sporting events, which will not happen so long as males are allowed to compete against them. Science is clear that male athletes have many inherent physical advantages over females, including greater size, stronger muscles, and larger bone structure. 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.”
Petersen vowed to appeal the ruling to the Supreme Court.
The appeals panel rejected the defendants’ argument that the ban serves the important government function of preserving equal opportunity and protecting girls from injury.
Christen said that claim is “based on overbroad generalizations and stereotypes that erroneously equate transgender status with athletic ability,” finding it discriminatory on its face. The panel found the plaintiffs’ equal protection claims succeeded because the ban does nothing to afford equal opportunity to transgender girls.
However, the panel declined to address the plaintiffs’ Title IX claim, as it’s unclear whether the statute authorizes distinctions based on assigned sex. But the plaintiffs are required to show a likelihood of success on only one of their claims to be granted preliminary injunction.
Toma didn’t respond to a request for comment, but a House Republicans spokesperson said the speaker is “currently reviewing the ruling and deciding next steps.”
Horne didn’t return a phone call for comment.
U.S. Circuit Judges Margaret McKeown, a Bill Clinton appointee, and David Ezra, a Ronald Reagan appointee, rounded out the three-judge panel.
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