The Save Women’s Sports Act (Act) was adopted by the Arizona legislature in September 2022, and stated that athletic teams or sports sponsored by public and private schools whose students or teams compete against a public school, must be expressly designated as one of the following, based on the biological sex of the students who participate on the team or in the sport: (1) males, men, or boys; (2) females, women, or girls; and (3) coed or mixed. Under the Act, athletic teams or sports designated for females, women, and girls were not open to students of the male sex. The statute did not restrict the eligibility of any student to participate on an athletic team designated as being for males, men, or boys or designated as coed or mixed.
Plaintiffs, two transgender girls, sought a preliminary and permanent injunction to stop enforcement of the Act, which Plaintiffs alleged precluded them from playing on girls’ sports teams. The Plaintiffs changed their names through the court system, have taken puberty blockers and hormone therapy, and have not undergone male puberty. Plaintiffs argued that enforcing the Act violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
In July 2023, after considering the parties’ briefs, evidentiary submissions from numerous experts, and argument presented at a hearing, the trial court ruled in favor of the transgender girls and granted the preliminary injunction. The trial court found that the Act was adopted for the purpose of excluding transgender girls from playing on girls’ sports teams. The trial court also found that before puberty, there is no significant differences in athletic performance between boys and girls. Transgender girls who receive hormone therapy after receiving puberty-blocking medication will develop the skeletal structure, fat distribution, and muscle and breast development typical of other girls and will typically have the same levels of estrogen and testosterone as other girls.
The Defendants, which include two state superintendents, two Arizona legislators, the interscholastic athletic association, a school district, and a private school, appealed.
The Defendants argued that the trial court’s factual findings regarding the expert medical evidence were clearly erroneous. Specifically, they argued that the trial court clearly erred by: (1) finding that there were no significant differences in athletic performance between boys and girls; (2) treating small differences between boys and girls as insignificant; and (3) finding that transgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls.
The Court of Appeals considered medical experts’ research and findings on these topics and agreed with the trial court. For example, the Defendants pointed to a handful of studies suggesting that pre-pubertal boys may be taller, weigh more, have more muscle mass, have less body fat, or have greater shoulder internal rotator strength than pre-pubertal girls. The Court of Appeals found, however, that these studies neither attributed these differences to biological rather than sociological factors nor concluded that these differences translated into competitive athletic advantages.
Although the Defendants’ medical experts disagreed with the trial court’s findings, the Court of Appeals found that the findings were firmly grounded in evidence, and therefore were not clearly erroneous.
The Court of Appeals next considered the trial court’s ruling that the Plaintiffs were likely to succeed on their equal protection and Title IX claims.
Under the law, there is a strong presumption that gender classifications are invalid and the burden rests on the state to justify the classification. When legislation disadvantages various groups or persons, there are three tiers of judicial scrutiny, and courts must apply the appropriate level of scrutiny to evaluate whether the law has encroached on an individual’s rights. For statutes that discriminate on the basis of sex, the court must apply heightened scrutiny, the intermediate tier of judicial scrutiny.
The Defendants argued that rational basis, the lowest level of scrutiny, should apply because the Arizona legislature passed a remedial law to benefit girls and women, to promote opportunities for female athletes and remedy past discrimination. The Court of Appeals found that the trial court properly concluded that the Act had a discriminatory purpose based on gender identity, and therefore heightened scrutiny should apply. The Court found that the Act was not remedial; it was adopted for the purpose of excluding transgender girls from playing on girls’ sports teams.
To withstand heightened scrutiny, a classification by sex must serve important governmental objectives and the challenged law or policy must be substantially related to achievement of those objectives.
Here, the Court of Appeals concluded that the state had an important governmental interest in ensuring competitive fairness, student safety, and equal athletic opportunities for women and girls. The question was whether the transgender ban was substantially related to the achievement of those objectives. The Court of Appeals concluded it was not.
The Court reasoned that the Act does not afford transgender women and girls equal athletic opportunities because it allows cisgender women and girls to play on any teams, male or female, while transgender women and girls are only allowed to play on male teams. The Act also permits all students other than transgender women and girls to play on teams consistent with their gender identities. Transgender women and girls alone were barred from doing so, which is the essence of discrimination.
The Court of Appeals also reasoned that allowing transgender females to play on female teams would not displace cisgender females to a substantial extent, and that a student’s transgender status was not an accurate proxy for average athletic ability or athletic advantage.
Therefore, the Court of Appeals upheld the trial court’s conclusion that categorically banning all transgender girls from playing girls’ sports was not substantially related to an important government interest.
The Court of Appeals upheld the preliminary injunction.
Doe v. Horne (9th Cir. 2024) 2024 U.S. App. LEXIS 22847.
Note: LCW previously covered this . This case is binding on the Ninth Circuit, which California is part of. However, the preliminary injunction in this case is narrow. It only bars enforcement of the Act against the two transgender girls who have not gone through male puberty and who wish to play girls’ sports at their Arizona schools.