Tom Horne heads to court to defend transgender school sports ban. What to know

In April, the parents of two transgender girls filed a lawsuit challenging Arizona's year-old law that bans transgender girls from competing on girls' school sports teams.

The two plaintiffs — who are going by the pseudonyms Jane Doe and Megan Roe in court filings — are seeking to be able to play school sports on girls’ teams while the case proceeds. The earliest tryouts for the upcoming school year start in mid-July, according to court filings.

Arguments on the motion for a preliminary injunction are scheduled to be considered on Monday at a U.S. District Court in Tucson during a 1:30 p.m. hearing.

Plaintiffs seek equal opportunity to play on girls' sports teams

Last year, former Arizona Gov. Doug Ducey signed into law a bill that bans student-athletes who are transgender girls from playing on competitive girls' sports teams.

In April, the parents of two transgender girls in Arizona filed a lawsuit alleging the ban violates the U.S. Constitution's Equal Protection Clause, Title IX, the Americans with Disabilities Act and the Rehabilitation Act, a 1973 federal law that prohibits discrimination against people with disabilities by programs receiving federal funds.

The plaintiffs are seeking to stop enforcement of the law as it applies to them and want an equal opportunity to participate on the girls' sports teams at their schools.

Jane, 11, has played soccer on girls' club and recreational teams for nearly five years and plans to try out for the girls' soccer, cross-country and basketball teams when she starts at Kyrene Aprende Middle School in Chandler this year, according to court filings. Megan, 15, intends to try out for the girls' volleyball team at The Gregory School in Tucson this fall.

According to plaintiffs' court filings, Jane and Megan have not and will not experience male puberty as a result of their medical treatment for gender dysphoria, a diagnosis that describes a feeling of discomfort or distress that might occur in an individual whose gender identity differs from their sex assigned at birth or their body.

The suit names Superintendent of Public Instruction Tom Horne as a defendant in his official capacity, as well as the Arizona Interscholastic Association, The Gregory School, the Kyrene School District and Kyrene Superintendent Laura Toenjes in her official capacity.

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Before the ban, the Arizona Interscholastic Association, a regulatory body that oversees high school athletic competition in Arizona, allowed transgender students to “participate in interscholastic events on teams whose gender matched the student’s gender identity." The association adopted this as a formal policy in 2017.

The association approved 16 requests from transgender athletes to compete on sports teams that align with their gender identity between 2017 and 2022, according to testimony by Kristina Wilson, who was the chair of the association's Sports Medicine Advisory Committee, during a March 2022 hearing on the bill. The organization oversees athletics for around 170,000 students, Wilson said.

Plaintiffs must show law would cause 'irreparable harm'

To succeed with their request for a preliminary injunction and temporarily block enforcement of the law as it applies to them, the plaintiffs must show that enforcing the ban would cause them irreparable harm.

Citing declarations of support from Stephanie Budge, a licensed psychologist from Wisconsin who specializes in issues of gender identity and gender transition processes, and Daniel Shumer, a pediatric endocrinologist and the Medical Director of the Comprehensive Gender Services Program at Michigan Medicine, the plaintiffs' attorneys argue that their clients' mental health is "dependent on living as girls in all aspects of their lives."

Playing on a boys' team would "directly contradict" their medical treatment for gender dysphoria and would be "painful and humiliating," the attorneys argue.

If the defendants are permitted to enforce the ban against them, Jane and Megan will be "deprived of the social, educational, and physical and emotional health benefits that come from school sports," attorneys said in court filings.

Arizona schools chief Horne argues that the ban neither violates Title IX nor the Equal Protection Clause. He claims that Title IX, the landmark 1972 legislation that prohibits sex-based discrimination within educational institutions that receive federal funding, was "actually adopted to promote sex equality by permitting sex-separated sports."

In court filings, he claims that cisgender girls competing in sports may face “emotional injury, physical injury, and competitive disadvantage" if transgender girls are not banned from girls' sports teams.

The goal of the ban is to provide "safety and fairness to girls in sports competition," Horne argues.

Schools, Arizona Interscholastic Association don’t want to be involved

The Arizona Interscholastic Association, The Gregory School, and the Kyrene School District and its superintendent, all named as defendants, have each put forward reasons as to why they believe they should not be involved in the lawsuit.

The Arizona Interscholastic Association did not enact the ban and does not enforce it, the association argues in court filings. In fact, it hasn't changed its 2017 policy since the law was passed.

It argues that the plaintiffs' motion for a preliminary injunction should be denied "as to AIA" because the plaintiffs "fail to identify why an injunction preventing any act by the AIA is necessary."

The Gregory School, a private middle and high school, argues that it's not subject to any of the laws that plaintiffs claim it's violating. The school is not subject to Title IX or the Rehabilitation Act, its attorneys claim, because it doesn’t receive federal financial assistance — a point of contention with the plaintiffs, who argue that the school's 501(c)(3) tax-exempt status constitutes federal aid. During Monday’s hearing, the Tuscon court is also scheduled to hear arguments on the Gregory School’s motion to dismiss the plaintiff’s claims against it.

The Kyrene School District, a public school district in Maricopa County, and its superintendent have no intention to defend the ban and “will not be an active participant in this case," according to court filings. The district is obligated under Arizona law to apply the ban and will abide by the decisions of the court, according to a joint court filing from Kyrene and the plaintiffs.

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State GOP leaders, conservative political group seek to defend the ban

A week after the lawsuit was filed, Democratic State Attorney General Kris Mayes announced she would not defend the ban and instead authorized Horne to hire private attorneys.

After Mayes refused to defend the ban, Arizona Senate President Warren Petersen and House Speaker Ben Toma, both Republicans, filed a motion to intervene to defend the law.

Arizona Women of Action, an anti-LGBTQ+, conservative political action committee, filed a motion to intervene to defend the ban as well. The proposed intervenors Anna Van Hoek, a governing board member for the Higley Unified School District, Amber Zenczak and Lisa Fink claim they, as Arizona parents with cisgender daughters who support the ban, offer a "critical and unique perspective as yet unrepresented in this action."

They argue that participating in girls' sports teams has "dramatically benefited" their "daughters' personal and social development" and that their daughters' sporting experiences have "built their self-confidence and allowed them to experience a type of camaraderie and friendship that could not be replicated anywhere else."

If their daughters' teams included transgender girls, their motion to intervene argues, "virtually all those benefits would evaporate." Van Hoek argues that the presence of transgender girls on a girls' sports team creates a "significant obstacle" to cisgender girls "achieving their best performance."

Attorneys for the intervenors will be heard at the July 10 hearing.

Arizona is one of 22 states that have laws banning transgender students from participating in sports consistent with their gender identity, according to the Movement Advancement Project. Idaho was the first to pass a ban in 2020.

Preliminary injunctions are currently blocking enforcement of the bans in Idaho, West Virginia and Utah, according to the Movement Action Project.

Madeleine Parrish covers K-12 education. Reach her at mparrish@arizonarepublic.com and follow her on Twitter at @maddieparrish61.

This article originally appeared on Arizona Republic: Tom Horne heads to court to defend transgender school sports ban