Judge says transgender bathrooms measure can go to AZ ballot

At a hearing Thursday, Maricopa County Superior Court Judge Greg Como said it could be considered a stretch to tie the two issues together in the single measure that Republican lawmakers want voters to approve in November.

But Como said there is enough of a connection between the two provisions that it can fit into constitutional requirements that a ballot measure deal with a single subject.

The decision is a setback for two ministers who filed suit to knock the referral off the November ballot, as well as for Will of the People, a group newly formed to oppose it. But attorney Jim Barton said no decision has yet been made whether to seek an appeal.

At the heart of the legal debate is whether voters are being asked to decide what Barton contends are two separate issues on a take-it-or-leave-it basis.

The first part would revamp an existing 2022 law designed to preclude transgender girls — considered by the statute to be biological boys — from participating in what are designed as girls' sports.

State Rep. Selina Bliss said the ballot proposal is not a major departure from what's now on the books. But the Prescott Republican, who crafted the measure, said there was a good reason to put it on the November ballot.

She pointed out that something enacted by lawmakers is subject to adjustment — and even repeal — if a different group of legislators is elected.

But Bliss noted that anything approved at the ballot is covered by the Voter Protection Act, which forbids any future legislature from repealing it without asking permission of voters. And while minor changes are constitutionally permitted, they have to "further the original purpose'' of what voters approved — and such amendments require a nearly impossible three-fourths vote of both the House and the Senate to take effect.

What's at issue in the lawsuit is the other half of the ballot measure.

It says any school that offers sports must designate all restrooms, showers, and lockers — not just those being used by athletes — as being exclusively for males or females. And it says the question of male or female is determined exclusively by the sex assigned at birth.

Barton told Como this is broader than the issue of sports in public schools, the designated subject of the measure, as it also would affect other transgender students who happen to attend the same school even if they don't participate in athletics. 

"These ideas of where we go to the bathroom and where we change, those are handled in a very different area of the law than the section of the law that deals with how sports are,'' he said.

Barton said that goes to the issue of why the Arizona Constitution says voters shouldn't be put in the position of having to decide two issues with a single vote.

"We don't want to put together dissimilar ideas and present both at the same time,'' he said.

On one hand, he said, if the measure is about sports and their participants, an argument could be made that the facilities attached to them — the locker rooms and bathrooms adjacent to gyms — could be declared to be off-limits to those who were not born in the sex for which those facilities are reserved.

But that's not what the measure says. "It spills over into every bathroom'' in the school, he told the judge.

"Students that are not doing anything with athletics are now going to have to use the 'wrong' bathroom,'' Barton said, meaning the one that does not match their identity. "I think that makes these separate subjects.''

Como said he understood the argument.

"I agree it's a bit tenuous because the two provisions seemed to be directed at different types of harms, if you will, or different types of activities,'' the judge said. "One is locker rooms and privacy, the other is competition in sport.''

But Como said there is a common thread between both parts of the measure.

"They both involve student participation in athletics, and transgender people's participation specifically,'' he said. "It seems that's the link that holds things together.''