The Save Women’s Sports Act (Act) was adopted by the Arizona legislature in September 2022, and stated that athletic teams or sports sponsored by public and private schools whose students or teams compete against a public school, must be expressly designated as one of the following, based on the biological sex of the students who participate on the team or in the sport: (1) males, men, or boys; (2) females, women, or girls; and (3) coed or mixed. Under the Act, athletic teams or sports designated for females, women, and girls were not open to students of the male sex. The statute did not restrict the eligibility of any student to participate on an athletic team designated as being for males, men, or boys or designated as coed or mixed.
Plaintiffs, a group of transgender girls, sought a preliminary and permanent injunction to stop enforcement of the Act, which Plaintiffs alleged precluded them from playing on girls’ sports teams. The Plaintiffs changed their names through the court system, have taken puberty blockers and hormone therapy, and have not undergone male puberty. Plaintiffs argued that enforcing the Act violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
The court considered expert testimony and concluded that transgender girls who have not undergone male puberty have no athletic advantage over other girls. Transgender girls’ physical characteristics, especially in terms of height, weight, and strength, overlap with those of other girls. For example, some girls may be taller than average, and some transgender girls may be taller than average. There is no significant differences in athletic performance between boys and girls before puberty; it is only after puberty that athletic performance between adolescent boys and girls begins to diverge.
Under the law, there is a strong presumption that gender classifications are invalid and the burden rests on the state to justify the classification. When legislation disadvantages various groups or persons, there are three tiers of judicial scrutiny, and courts must apply the appropriate level of scrutiny to evaluate whether the law has encroached on an individual’s rights. For statutes that discriminate on the basis of sex, the court must apply heightened scrutiny, the intermediate tier of judicial scrutiny. To withstand heightened scrutiny, a classification by sex must serve important governmental objectives and the challenged law or policy must be substantially related to achievement of those objectives.
Here, the court concluded that the Act’s goals were not substantially related to the legitimate goals of ensuring equal opportunities for girls to play sports and to prevent safety risks. The court found no evidence that transgender girls who have not experienced puberty have any physiological advantages over other girls that would create unfair competition. The court found that the Act was overly broad and treats transgender girls and transgender boys differently, with only girls’ teams facing potential challenges related to suspected transgender players. The Court concluded that categorically banning all transgender girls from playing girls’ sports was not substantially related to an important government interest.
The court also concluded that the Plaintiffs have a cognizable claim under Title IX because the Act deprives them the benefits of sports programs and activities that their non-transgender classmates enjoy. The court was not persuaded that Plaintiffs can join the boys’ teams because the transgender girls will not undergo male puberty and playing on a boys’ team could be dangerous, shameful, and humiliating for Plaintiffs. The court concluded that Plaintiffs will suffer severe and irreparable mental, physical, and emotional harm if the Act applies to them. Finally, there is no evidence that anyone would be harmed by allowing Plaintiffs to continue playing with their peers.
Therefore, the court granted the preliminary injunction, stopping enforcement of the Act as to the transgender girls.
Doe v. Horne, (D. Ariz. July 20, 2023) __ F.Supp.3d __ [2023 WL 4661831].
Note: Transgender sports is a topic facing a lot of judicial scrutiny. This case has already been appealed to the Ninth Circuit Court of Appeals. California is part of the Ninth Circuit and that decision may be binding on California private schools. LCW will monitor this case for developments.