Supreme Court's ruling on transgender sports reopens Arizona case

In its ruling Tuesday, the high court rejected arguments by transgender girls from Idaho and West Virginia that laws prohibiting them from competing in girls' sports violated Title IX, which bars discrimination on the basis of sex.

Justice Brett Kavanaugh, writing for the majority, said states are free under that law to define "sex'' as "biological sex,'' meaning the sex assigned at birth, and not the broader sense of how athletes identify themselves. To do so also doesn't violate the Equal Protection Clause of the U.S. Constitution, Kavanaugh said.

Tuesday's ruling is particularly relevant because in 2023, a federal judge here cited both Title IX and the Equal Protection Clause — reasons the Supreme Court now says are not valid to consider in such cases — when concluding Arizona could not use its own laws to ban transgender girls from participating in girls' sports.

The judge, U.S. District Court Judge Jennifer Zipps, said a 2022 Arizona law, which says it's illegal for a biological boy to play on a girl's team, illegally discriminated against the two transgender girls who filed suit against it, though she did not invalidate the entire law. 

But Zipps, in giving permission to the two transgender girls to compete, also found that their individual circumstances showed they had no physical advantage over those born biologically female, because neither had entered puberty and both were taking hormone blockers. 

Kavanaugh, in his 29-page opinion, said trial judges should not be making those kinds of individualized decisions. Nor was he convinced by arguments that transgender girls do not have a physical advantage and that courts, at least on a case-by-case basis, should be able to allow them to compete in girls' sports.

"That premise is the subject of ongoing medical and scientific debate,'' Kavanaugh wrote. Even if true, he said, it does not override the high court's finding that states that limit female teams to biological females do not violate equal protection requirements.

While Tuesday's ruling strictly affects the cases in Idaho and West Virginia, the justices also were thinking about the Arizona case. In fact, just hours after their ruling, they sent the Arizona case back to Zipps with directions to reconsider her 2023 order allowing transgender girls to participate in girls' sports — but this time basing her decision on their broader ruling. No date has been set for a hearing.

1 of 2 Arizona girls who sued no longer plays sports

"The ruling is very disappointing,'' said Rachel Berg, an attorney with the National Center for LGBTQ Rights who filed suit on behalf of the two transgender girls in Arizona and who got Zipps to rule they were entitled to play in girls' sports here.

But Berg told Capitol Media Services she doesn't believe Tuesday's ruling will mean Zipps will throw out the case. She said there is a "strong path forward'' for the judge to uphold her earlier order.

At the heart of Tuesday's ruling — and what Berg is now up against — is the finding by the Supreme Court that state laws limiting participation in sports based on biological sex are not illegal.

"Separate sports teams for biological males and biological females are reasonable,'' Kavanaugh wrote. "Given the inherent physical difference between the sexes, allowing only biological females to play on women's and girls' teams can reduce the risk of physical injury and ensure fair competition.''

For Berg, the key to a "path forward'' is that her lawsuit is built on more than the two issues that formed the basis of Tuesday's decision in the Idaho and West Virginia cases.

One is that her Arizona lawsuit includes a claim of violation of the Americans with Disabilities Act. Berg said this issue — not addressed in Tuesday's ruling — stems from the argument that the transgender girls have "gender dysphoria,'' a psychological condition where there is distress due to a mismatch between a person's gender identity and their sex assigned at birth.

The other, Berg said, is her argument that lawmakers, in approving Arizona's 2022 law, acted with "discriminatory intent'' to harm transgender girls. She said that could provide a basis for Zipps to conclude that, despite Tuesday's ruling, the Arizona law is unenforceable — at least in the specific cases of the two transgender girls who sued.

At this point, however, only one plaintiff remains in the Arizona case: a transgender girl who recently graduated from Aprende Middle School in the Kyrene Elementary School District. Berg said she intends to participate in girls' sports when she goes to high school.

The other plaintiff had been a student at the private Gregory School in Tucson. She has graduated.

"She's not playing sports in Arizona ever again,'' Berg said.

State schools chief thinks girl's case won't succeed 

Arizona Superintendent of Public Instruction Tom Horne, an elected Republican who fought Zipps' ruling, said he doubts any such claims will succeed when the case goes back to the federal judge in Tucson.

He said the Supreme Court ruling is broad enough to protect against any bid by a transgender girl to participate in girls' sports in Arizona. More to the point of the 2022 state law, Horne said it is not fair for biological girls to have to compete against biological boys, meaning those born male. They have advantages from birth in size, speed and strength, he said.

Nor was he convinced that any of that could be overcome because a biological boy had not gone through puberty or was taking hormone blockers.

"We had a witness testify that, even before puberty, boys have an advantage over girls in sports,'' he told Capitol Media Services.

"If you've ever gone to an elementary school playground, you will see that,'' Horne said. "Boys are prepubescent, but they are better than the girls.''

Kavanaugh, in Tuesday's ruling, made the same point, citing policies of the International Olympic Committee that limited participation in women's sports.

"The IOC found that biological males possess a 'performance advantage in all sports and events that rely on strength, power, and/or endurance,' '' the justice said, quoting from the committee.

"Athletes retain male performance advantage due in part to training effects and fixed traits,'' Kavanaugh wrote, again quoting from IOC rules. "There is no current evidence that testosterone suppression or gender-affirming hormone treatment eliminates this advantage.''

Even if there are exceptions, he said, states are free to draw such lines.

"Of course, no line that the states draw will satisfy everyone,'' he said. "But the judiciary is not the proper institution to make what would often be arbitrary and highly intrusive athlete-by-athlete assessments.''

Kavanaugh, like Horne, said it's also a matter of fairness, with sports generally a "zero-sum'' game.

"Every athlete who makes a team takes a roster spot from another athlete,'' he wrote. "Every player who earns playing time reduces the playing time of a teammate. Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize.''

Arizona ballot has measure to expand the law

Tuesday's ruling comes ahead of efforts by Republican lawmakers in Arizona to expand on the 2022 law.

A measure being sent to the Arizona ballot in November asks voters to further clarify the law, requiring that all sports be designated as male, female or coeducational and barring schools or athletic associations from opening up either interscholastic or intramural teams designed for females to the opposite sex.

What's dubbed the Protect Girls' Sports in Arizona Act also contains provisions restricting public and private schools that provide education from kindergarten through 12th grade from allowing restrooms, locker rooms or other private spaces for athletes from being used by someone who is not of the sex for that sport. And it defines "sex'' as "an individual's biological status as male or female as recorded at birth on the individual's original birth certificate.''

The proposal, if adopted, also would allow for lawsuits to be brought by any athlete who is deprived of an athletic opportunity because of any violation of the law.

Peter Gentala, president of the Center for Arizona Policy, which lobbies on behalf of bills it says promote traditional values of life, marriage and family, said voter approval of the measure would provide "the surest and most lasting protection available'' to designating sports by biology, and "not a rule waiting on the next appeal.''