How the U.S. Supreme Court ruling on girls' sports affects this Arizona case

A new U.S. Supreme Court ruling allowing states to limit who can participate in girls' sports could undermine an effort by at least one transgender girl in Arizona to continue to compete.

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

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Justice Brett Kavanaugh, who has long coached his daughters' and other girls' basketball teams at school, wrote the court's majority opinion.

Justice Brett Kavanagh, writing for the majority, said states are free under that law to define "sex'' as "biological sex,'' meaning sex assigned at birth.

And Kavanaugh said that, for the same reason, there is no violation of the equal protection clause of the U.S. Constitution.

What makes Tuesday's ruling particularly relevant in Arizona is that U.S. District Court Judge Jennifer Zipps, in a 2023 ruling, cited both those reasons when she concluded that Arizona cannot use its own laws to ban transgender girls from participating in girls' sports here.

The judge said the 2022 Arizona law illegally discriminates against the two transgender girls who filed suit, though she did not invalidate the entire statute – reasons that the Supreme Court has now said are not valid to consider in these kinds of cases.

But Zipps, in giving permission to the two girls to compete, also concluded that the individual situations of the two transgender girls who sued showed they had no physical advantage over cisgender girls.

Kavanaugh said in his 29-page opinion that 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, meaning 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.

And he said it would not override the court's conclusion that states banning transgender girls from competing on girls’ sports teams do not violate equal protection requirements.

While Tuesday's ruling strictly affects the cases in Idaho and West Virginia, the justices also were considering the Arizona case. In fact, just hours after their ruling, they sent the Arizona case back to the 9th U.S. Circuit Court of Appeals.

"The ruling is very disappointing,'' said Rachel Berg.

She is 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 that they are entitled to play in girls' sports here.

But Berg told Capitol Media Services she doesn't believe Tuesday's ruling will mean the case will be thrown out. And 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 sex assigned at birth are legal.

For Berg, the key to that "path forward'' is that her lawsuit is built on more than the two issues that formed the basis of Tuesday's decision by the Supreme Court 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 in her case have gender dysphoria, the distress some people feel when their bodies, presentations or society’s perceptions of them don't align with their gender.

The other, Berg said, is her argument that lawmakers, in approving the 2022 law, acted with "discriminatory intent'' to harm transgender girls. And that, she said, could provide a basis for a lower court to conclude that, despite Tuesday's ruling, the Arizona law is unenforceable – at least as far as it pertains to the transgender girls that sued.

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

The other plaintiff had been a student at a private school who Berg said has graduated.

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

State schools chief Tom Horne, who fought Zipps' ruling, said he doubts any such claims will succeed when the case goes back to the lower court.

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.

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

A measure being sent to the 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 transgender students.

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.