What the lawyer representing trans student athletes says about the future for students

Last week, a federal judge for the U.S. District Court blocked the enforcement of Arizona’s controversial trans athlete ban in high school team sports, which barred transgender teens from playing in the sports that matched with their gender identity.

The law, SB1165, was passed under former Gov. Doug Ducey’s final term in March 2022. The bill was one of the first legislative actions the nation saw during the pre-midterm election cycle last year, which would later be used as a platform for conservative talking points around the queer culture wars.

But as the law went into effect, two teenaged transgender girls brought a lawsuit against the state and AZ Public School Superintendent Tom Horne, who quickly dismissed the lawsuit and said the controversy around trans girls in sports wasn’t an “LGBT issue.”

The two girls are unnamed in the lawsuit, but referred to as 11-year-old Jane Doe and 15-year-old Megan Roe. The student athletes filed their suit against Arizona in an attempt to lift the state’s law.

Since the district court judge made her ruling, and as the case runs through the court system, the two girls represented in the lawsuit have been able to return back to playing on their respective teams according to their gender identity.

Horne pledged to appeal the ruling, and said that if the battle goes all the way to the U.S. Supreme Court, the justices would “rule in our favor,” he said during an interview with KTAR Radio.

“We are very pleased with the Court’s decision that allows our clients to play on girls’ sports teams while this case proceeds,” said Rachel Berg, a staff attorney at the National Center for Lesbian Rights, in a press release. ”The Court recognized the law is overbroad and cannot survive constitutional scrutiny. We look forward to securing a permanent ruling.”

Berg briefly spoke with LOOKOUT Phx about the case, which you can read below:

LOOKOUT: What was the lawsuit you brought against Arizona in relation to SB1165?

BERG: Arizona passed a law in 2022 that bans all transgender girls from playing school sports on girls’ teams. So we brought a lawsuit to challenge the constitutionality of that law and we also allege that it violates civil rights-related statutes.

LO: Can you explain what happened last week with the circuit court’s ruling? What exactly did it do?

B: We filed what’s called a motion for preliminary injunction, which is to get relief for our clients while the case proceeds through trial. The judge agreed with our entire case and said that she agreed that the law was unconstitutional and violated Title IX. So that means that our clients can play sports while the case proceeds through trial.

LO: So, essentially, the court's ruling lifts the sports ban temporarily. What does that mean? And what will it take for the case to secure a permanent ruling?

B: Now we have to go through the full litigation process and we now have a roadmap for the judge’s opinion to be able to follow in order to secure that permanent ruling. I’m confident we’ll be able to get that.

LO: Recently, President Joe Biden made his own executive order regarding this, can you explain how your case intersects with the executive order?

B: Biden passed an executive order? I think what you might mean to say is that the Department of Education issued and proposed a rule regarding Title IX and trans sports. However that rule has not yet gone into effect. I think it’s important to recognize that the Biden administration understands that laws that exclude trans youth from sports are unconstitutional and violate Title IX.

LO Context: In 2021, Biden signed an executive order that ordered states to enforce discrimination laws for all transgender people in the U.S., including in youth sports. The executive order cited the Bostock v. Clayton County Supreme Court decision made in 2020, which established non-discrimination laws based on sex and sexual preference. This year, though, the White House pared back some of that language, and said that states could not establish outright bans, but must make considerations in a case-by-case basis.

In addition, the Department of education proposed changes in 2022 to Title IX, which “would strengthen protections for students who experience sexual harassment and assault at school, and they would help protect LGBTQI+ students from discrimination,” according to the Department of Education’s Website. Those proposed changes, as Berg mentioned, have not taken effect.

LO: How has this case impacted the two families involved? What have they said and what are they excited or even scared about?

B: Our clients are, as stated in our press release, thrilled that the judge recognized that the law is unconstitutional and violates Title IX. They are thrilled that their daughters will be able to play sports with their friends this year.

LO: Have the families received any backlash in their communities or schools?

B: Not that I’m aware of. They’re also anonymous.

LO: How has the schools/community been supportive of the girls?

B: All I can say is that their families are very supportive of them.

LO: In response to the ruling, the State Superintendent of Public Instruction, Tom Horne, released a statement, saying he’d take this all the way to SCOTUS. What’s at stake if this case goes all the way to the Supreme Court?

B: I think what’s important here is everybody knows what it feels like to be excluded when you’re a child. And no child should be excluded from a school activity because of who they are.

LO: Tom Horne continues to misrepresent the two transgender girls involved in the case. He calls them “biological boys” in press releases about the case. Have there been any conversations about that phrasing, and how it impacts these kids and their families?

B: I think what’s important is that the court recognized that these girls aren’t recognized as transgender girls, they’re recognized as the girls that they are.

LO: Does this court decision have any ancillary impacts with other anti-LGBTQ cases and laws in the state?

B: Not that I’m aware of. It provides a further basis for why laws that exclude people based on who they are, particularly transgender youth, are unconstitutional.