AZ Republican legislators ask SCOTUS to intervene on transgender girls in sports

Arizona’s Republican legislators are requesting a writ of certiorari, requesting that SCOTUS review a ruling from last month from the Ninth Circuit panel of judges out of San Francisco allowing two transgender teenage girls to play on girls’ school sports teams.

Arizona’s Legislature enacted the Save Women’s Sports Act (SWSA) in 2022 in order to “create an even playing field for women and girls at Arizona's schools, colleges, and universities in response to the growing number of cases nationwide of biological males robbing females of athletic opportunities and endangering the physical well-being of women and girls in sports competitions,” according to an Oct. 17 press release from the Arizona’s Senate Republicans.

The appeal bringing the case to the federal appellate court came from Thomas Horne, Arizona state superintendent of public instruction, Laura Toenjes, superintendent of the Kyrene and Gregory school districts, Arizona Senate President Warren Petersen and Arizona Speaker of the House of Representatives Ben Toma in response to the district court’s ruling that SWSA violated the equal protection clause under the 14th Amendment.

The two girls in question, whose names are not being released, are referred to in the court ruling as Jane Doe, 11, and Megan Roe, 15, both of whom have not undergone male puberty.

Both girls were diagnosed with gender dysphoria – where an individual’s gender identity does not align with the gender they were assigned at birth – at young ages and started on hormone blockers prior to the beginning of male puberty. They have also legally changed their names and genders on their passports.

Both girls have played on sports’ teams and want to continue to do so, but are prohibited under the act. Doe attends Kyrene Aprende Middle School in Chandler and Roe attends Gregory School, a private school in Tucson. According to the ruling, both girls’ teammates and coaches have no objection to them playing on the girls’ teams.

The trial court found that “[t]ransgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls because they do not undergo male puberty and do not experience the physiological changes caused by the increased production of testosterone associated with male puberty,” and the appellate court upheld that ruling.

The federal appellate court ruled that prohibiting these two girls from playing on sports teams that align with their gender identity based only on the fact that they are transgender is discrimination and violates the 14th Amendment.

However, Horne, Petersen and Toma are requesting that SCOTUS closely review the ruling due to medical research that has found prepubescent biological males still have some advantage over prepubescent biological females.

“These include significant disparities in running and throwing capabilities before puberty, as 9-year-old boys … exceed girls’ running times by … percentages ranging from 11.1-15.2% and boys exceed girls in throwing velocity by 1.5 standard deviation units as early as 4 to 7 years of age and in throwing distance by 1.5 standard deviation units as early as 2 to 4 years of age,” reads the 48-page document petitioning for a writ of certiorari.

Additionally, they state that this case is “an ideal vehicle to address these important questions,” meaning that if SCOTUS reviews this ruling, they could determine the constitutionality of these types of rulings - “an important question of federal law that has not been, but should be, settled by this Court,” reads the petition. “Review now will eliminate uncertainty by ensuring that state policymakers know whether they may separate sports by biological sex. Laws like Title IX have provided a ‘beneficial legacy for girls and women in sports.’”

Nonetheless, Arizona’s Republican legislators want the full enforcement of SWSA, barring transgender girls from participating in girls’ sports.

“We cannot remain silent and allow these wrongs against women and girls to continue,” Petersen said. “We must stand up and fight to protect our daughters, nieces, sisters, and granddaughters from bigger and stronger males who are claiming their identities, their private spaces, their sports, and are putting their safety at risk.”