The challenge to Arizona’s transgender school sports ban is all but over as the sole teenager who was challenging it decided to step back from the case. Without “Jane Doe,” as she’s called, the case can’t move forward.
The move comes in the wake of a U.S. Supreme Court decision allowing states to ban transgender students from playing on sports teams consistent with their gender identity.
Arizona’s challenge goes back to 2022, when then-Gov. Doug Ducey signed the Save Women’s Sports Act amid a wave of anti-trans legislation nationwide. The following year, Jane Doe and another student filed lawsuits against Arizona Superintendent of Public Instruction Tom Horne. The second student left the case when she graduated high school.
When she was elected, Democratic Attorney General Kris Mayes wouldn't defend the law in court. But, there have been years of legal back-and-forth and petitions for the Supreme Court to weigh in and all of it was exhausting for the young plaintiff, according to Rachel Berg.
Berg is a senior staff attorney for the National Center for LGBTQ Rights and she represented Jane Doe in the case. The Show spoke with her more about it.
Full conversation
RACHEL BERG: The litigation has been going on for over three years since our client started middle school. And it's a very grueling and difficult process, particularly for young people. And our client has decided that she does not want to continue with the litigation for personal reasons.
LAUREN GILGER: When you say grueling, just give folks a sense of what goes into this for someone who is a plaintiff in a case like this.
RACHEL BERG: It's a lot of time and energy, and she was deposed during the litigation. It's a lot for a young child to go through and put themselves out there.
LAUREN GILGER: So, stepping back from this case, as she has decided to do, what's your reaction to this? This is also three years of work that you've put into this case, and it comes on the heels of this decision from the U.S. Supreme Court on this issue.
RACHEL BERG: I understand her feelings not wanting to continue because she is just such a young child, and it's just so hard that these young kids have to go through something like this just to be able to play sports with their friends. So, I very much respect her decision. The Supreme Court decision was very disappointing. I also, though, want to point out that it is narrow and leaves the door open to different arguments and still allows states who permit transgender girls to play to continue to do so. So it is narrow.
LAUREN GILGER: It sounded like almost a threading the needle kind of decision from the U.S. Supreme Court.
RACHEL BERG: While we are very disappointed with the decision, the decision itself is narrow because it does still permit states that are allowing transgender girls to play to continue to allow them to do so. It also allows for inclusive policies in general, and the ruling doesn't reach beyond the sports context. So it still doesn't address different issues that come up under Title IX in relation to transgender students, like harassment in schools and locker rooms or bathrooms, for example.
LAUREN GILGER: Right. So, looking at this pretty narrow, as you're describing, decision from the U.S. Supreme Court on this issue nationally, where does it leave transgender students who might want to play sports in Arizona?
RACHEL BERG: So the decision itself leaves them no worse off in the sense that the Arizona Legislature's ban that it passed has been in effect since the beginning. Our ruling only related to the two individual clients that we represented. So unfortunately, the ban is still in effect and the ruling doesn't change that that is still in effect, unfortunately.
LAUREN GILGER: Right. There are, as you mentioned, though, some unanswered questions here in terms of where the SCOTUS decision leaves us, right? In terms of kids in grammar school, what about recreational leagues as opposed to just school sports, things like that? It sounds like there are some unanswered, open questions that you'll probably be dealing with in future cases.
RACHEL BERG: Yes, the ruling does not say anything about the states that are allowing transgender girls to play. It leaves the door open for inclusive policies. It's only limited to the sports context. It doesn't resolve the underlying science around whether somebody who takes puberty-blocking medication and hormone therapy has any competitive advantage, which they do not. And it leaves open the level of constitutional protections for transgender people.
LAUREN GILGER: I wonder if you were surprised by some of the wording in this decision. Like, Justice Kavanaugh wrote in the decision that transgender girls and women who want to play sports deserve respect, should not be ostracized or vilified. Was that heartening to you?
RACHEL BERG: No. While it was nice of him to say that, his ruling does allow for discrimination against them. So it wasn't much comfort to hear that.
LAUREN GILGER: So it sounds like you understand the position that your particular client is coming from in this Arizona case. She was the last one in the case. And I wonder, we saw the same thing happen with the transgender girl in the Idaho case that made it to the Supreme Court, right? Who sort of decided not to play sports in the end after all. Do you see a chilling effect here?
RACHEL BERG: Well, I think what's important to realize is just how young these kids are and that these laws are — young kids have to endure a litigation process to play sports. And that is just cruel. And it just takes a toll on these young people.
LAUREN GILGER: What are you watching for next, Rachel, in cases that you're considering or litigation you're watching here or around the country on this front? As we mentioned, many unanswered questions. Are you already involved in litigation that's attempting to answer those? Are there other cases on the horizon?
RACHEL BERG: Right now, I'm focusing on the Arizona ballot initiative relating to this topic and looking to see where that goes and whether we're able to challenge that. Also looking at other issues involving harassment of students in schools in Arizona.
LAUREN GILGER: Rachel Berg, senior staff attorney for the National Center for LGBTQ Rights, joining us. Rachel, thank you for coming on the show, I appreciate it.
RACHEL BERG: Thank you.
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