Lawmakers hire lawyer in Kyrene transgender suit

Arizona Senate President Warren Petersen, R-Gilbert, and other GOP legislative leaders have hired an attorney at taxpayer expense to defend a 2022 law banning transgender male students from participating in K-12 girls sports teams. (Arizonan file photo)

Top legislative Republicans have hired an out-of-state attorney at taxpayer expense to defend a 2022 law forbidding transgender girls from participating in girls’ sports in a lawsuit filed on behalf of a student in Kyrene School District and another in Tucson.

Justin Smith of St. Louis told U.S. District Court Judge Jennifer Zipps that Senate President Warren Petersen and House Speaker Ben Toma have a legal right to intervene because state Attorney General Kris Mayes disqualified herself from defending the statute.

Mayes said that her views on defending the lawsuit did not align with those of Tom Horne, the state schools chief who is named as a defendant in the case.

Horne has publicly supported the law, which Kyrene and Tempe Union governing boards reluctantly adopted as policy rather than risk penalties that could include a loss of state funding.

Mayes instead gave Horne permission to hire his own attorney but Smith told Zipps that Horne has yet to file any legal papers in the case “despite an imminent briefing deadline on plaintiffs’ motion for preliminary injunction.’’

“In fact, no other party has filed an entry of appearance to defend the statutes at issue,’’ he wrote.

And Smith said that even if and when Horne takes action – the schools chief said he has hired a Phoenix law firm – that won’t be enough.

He said Petersen and Toma have “unique legislative interests’’ in defending the law that may differ from Horne’s.

The statute requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And, more to the point, it specifically says that teams designated for women or girls “may not be open to students of the male sex.’’

The Arizona Interscholastic Association, which governs high school sports, handles requests by transgender athletes to participate in sports on a case-by-case basis. Factors included a student’s “gender story,’’ including the age at which they became aware of the “incongruence’’ between the sex assigned at birth and gender identity, and whether the student is undergoing gender transition.

Dr. Kristina Wilson, who was on the AIA’s medical advisory board, testified that out of 170,000 high school athletes, there had been just 16 requests by transgender individuals to compete.

Then-Gov. Doug Ducey, in signing the measure, lashed out at the organization for even allowing any transgender youth to participate.

“It’s a shame that the AIA and the NCAA (which governs college sports) won’t speak out on these,’’ he said.

Petersen said, “Female athletes deserve equal opportunities in sporting events, which will not happen so long as males are allowed to compete against them.”

But the lawyers for the two transgender girls said that isn’t the case.

One student is an 11-year-old boy who is set to attend Aprende Middle School in July and would like to try out for girls’ soccer and other teams. Lawyers say the student has “lived her life as a girl’’ since age 5.

The student “has not experienced any of the physiological changes, including muscle development, that increased testosterone levels would cause in a pubescent boy,’’ the lawyer said.

The other student is a 15-year-old who attends The Gregory School, a private school in Tucson.

Lawyers said that student has been on puberty-blocking medication since age 11.

In that case, the lawsuit says the school would permit the student to try out for the girls’ volleyball team if it were not for the 2022 law.

The attorneys contend that the statute, at least as it applies to these two students, violates constitutional requirements for equal protection under the law.

“Plaintiffs, who identify and live as girls and who have not and will not undergo male puberty, are similarly situated to other girls with respect to their participation on girls’ sports teams at school,’’ the lawsuit states.

It also alleges the statute violates Title IX, a federal law that prohibits discrimination in education programs based on sex.

“Neither Title IX, its regulations, nor its guidance purport to define ‘sex’ as something that is determined at fertilization and revealed at birth or in utero,’’ the lawyers told the judge.

Petersen did not address the two specific cases cited in the lawsuit and ignored the arguments about strength being tied to puberty.

“Science is clear that male athletes have many inherent physical advantages over females, including greater size, stronger muscles and larger bone structure,’’ he said.

“By allowing males to compete against females, we’re essentially subjecting young girls to greater risk of injury, as well as stripping them of athletic opportunities their female predecessors have long fought for.’’

Beyond the merits of the dispute, Petersen also took a swat at the National Center for Lesbian Rights, one of the law firms representing the two plaintiffs, calling it “a radical activist organization.’’

Rachel Berg, a staff attorney at the organization disputed that description.

“NCLR is a legal organization for LGBTQ people and their families,’’ she said, saying it has fought on their behalf for more than 40 years. Petersen did not respond to questions asking that he justify his description of NCLR.

That issue of gender identity is back before Arizona lawmakers again this year.

SB 1040 would require public schools to provide a “reasonable accommodation’’ to any person who is “unwilling or unable’’ to use a multi-occupancy restroom or changing facility designated for that person’s sex. And that is defined as someone’s “immutable biological sex as determined by anatomy and genetics existing at the time of the person’s birth.’’

SB 1001 would bar school employees from addressing a student younger than 18 by a pronoun that is different than the person’s “biological sex’’ unless there is first permission from a parent.

Both measures have been approved by the Senate and await final House action.

Gov. Katie Hobbs already has vetoed SB 1005, which dealt with the ability of parents to sue schools over perceived violations of parental rights while minimizing the risk of being held liable for legal fees. The Human Rights Campaign said the measure would have increased the threat of schools being sued for providing support for LGBTQ students.

Zipps has yet to set a date to hear the legal arguments. 

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