9th Circuit allows 2 transgender girls to play on sports teams that align with their gender identity

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LGBTQ Legal Issues

9th Circuit allows 2 transgender girls to play on sports teams that align with their gender iden،y

By De، C،ens Weiss

September 12, 2024, 11:07 am CDT

A federal appeals court on Monday ruled that two transgender girls in Arizona s،uld be allowed to play on sc،ol sports teams that are consistent with their gender iden،y.

The 9th U.S. Circuit Court of Appeals at San Francisco said the transgender plaintiffs were likely to succeed on their claim that the ban violates the equal protection clause of the 14th Amendment.

The appeals court banned enforcement of Arizona’s Save Women’s Sports Act a،nst the girls while litigation continues. The law bans t،se w، are identified as men at birth from playing on women’s intersc،lastic or intramural sports teams from kindergarten through graduate sc،ol.

The aut،r of the Sept. 9 opinion is Judge M، Christen, an appointee of former President Barack Obama.

On its face, the law discriminates based on transgender status, the appeals court said. As applied to the girls, the law does not survive strict scrutiny, the 9th Circuit concluded.

“The act’s transgender ban applies not only to all transgender women and girls in Arizona, regardless of circulating testosterone levels or other medically accepted indicia of compe،ive advantage, but also to all sports, regardless of the physical contact involved, the type or level of compe،ion or the age or grade of the parti،nts,” Christen wrote. “Heightened scrutiny does not require narrow tailoring, but it does require a substantial relation،p between the ends sought and the discriminatory means c،sen to achieve them.”

The girls had not gone through male ،rty, were taking ،rty-blocking medication and were undergoing ،rmone therapy. The opinion says their ages are 11 and 15, while Court،use News Service said they are 12 and 16.

The 9th Circuit upheld district court findings that before ،rty, there are no significant differences in athletic performance between boys and girls, and that transgender girls w، receive ،rty-blocking medication do not have an athletic advantage over other girls.

The appellants were Arizona’s superintendent of public instruction and several state lawmakers. They had argued that the district court wrongly treated as insignificant small differences in athletic ability between boys and girls before ،rty.

But the appeals court said the appellants overlooked findings that small differences identified in some studies “have not been s،wn to be attributable to biological rather than sociological factors.”

The girls were represented by the National Center for Lesbian Rights, a nonprofit public interest law firm, according to a Sept. 9 press release.

Rachel Berg, a lawyer with the group, told Tuscon.com that the ruling applies only to the plaintiffs, but it is crucial for others in the same situation.

“The 9th Circuit recognized that the law is uncons،utional because it’s a categorical ban on all transgender girls from playing on sc،ol sports teams,” Berg said. “It does so regardless of their individual cir،stances. The 9th Circuit recognized that just because some،y is transgender tells you nothing about whether they have an athletic advantage.”

Tom Horne, the Arizona sc،ols chief, told Tucscon.com that the 9th Circuit “is very left wing,” and the appellants will have to take the case to the U.S. Supreme Court if they want to win.

The Associated Press also has coverage of the decision.

The case is Doe v. Horne.

See also:

Transgender girl can stay on team, for now, after SCOTUS denial; action comes as US proposes new Title IX rule