By Howard Fischer
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PHOENIX — The mothers of some biological girls will not be able to join the legal fight against the efforts to allow two transgender girls to participate in school sports.

U.S. District Court Judge Jennifer Zipps said the three women have not shown that their daughters are at any risk of harm if she grants the request by the two transgender girls.

The judge pointed out that lawsuit does not seek to allow all transgender girls to participate in girls’ sports but only for the two specific ones who have not undergone puberty and filed suit. And Zipps said there is no evidence that the daughters of the three women will ever be playing against either of the transgender girls or on the same teams.

Zipps also dismissed arguments that state schools chief Tom Horne, who was named as defendant, lacks the financial resources to defend the 2022 law which is designed to keep anyone born male from playing on teams designed for girls.

Their attorney said that’s because Attorney General Kris Mayes, whose office normally defends state agencies and state laws, stepped away from the case, saying her views on the issue did not align with did not align with those of Horne.

But the judge pointed out that Mayes also has said Horne can use state funds to hire his own lawyer. She also noted that Senate President Warren Petersen and House Speaker Ben Toma also have intervened with their own attorneys to defend the law.

And Zipps sniffed at the claim by the parents that their participation is needed to bring to this case “the unique perspective of the biological girls who will be harmed” if the 2022 law cannot be enforced, a perspective they said does not exist with Horne, Petersen and Toma defending the statute.

“The court is unconvinced that defendants would neglect the perspective of biological females,” the judge said.

She said the legislative leaders already have filed legal arguments that having separate sex-specific teams “furthers efforts to promote sex equality by providing opportunities for female athletes to demonstrate their skill, strength and athletic abilities.” The judge also said the GOP lawmakers also have said that separate sports provide girls to obtain recognition, college scholarships “and the numerous other long-term benefits that flow from success in athletic endeavors.”

And Zipps said just because Horne, Petersen and Toma are not the mothers of girls in sports does not make them incapable of defending the law.

“Simply because an individual with a particular perspective is not made a party to the litigation does not mean that their interest will not be adequately protected by existing parties,” Zipps said.

Her ruling comes as the judge, who already has given permission for the two transgender girls who first filed suit to play on girls’ teams while the case proceeds, now has to decide whether to make that order permanent.

The statute requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as make, 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.”

Proponents said having biological boys on girls’ teams deprives the biological girls of competition opportunities. They also argued that those born male are inherently stronger, even before puberty, giving them an unfair advantage and creating the possibility of injury to other players.

Until the law was approved, requests for transgender students to participate had been handled on a case-by-case basis by the Arizona Interscholastic Association which governs high school sports. 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 to lawmakers that out of 170,000 high school athletes, there had been just 16 requests by transgender students to compete.

The law is being challenged by two students.

One was set to attend Apprende Middle School and wanted to try out for girls’ soccer and other teams. Her lawyers said the student has “lived her life as a girl” since age 5.

The other is a student attending The Gregory School, a private school in Tucson who was 15 when the lawsuit was filed. The lawyers said that student has been on puberty-blocking medication since age 11.

In July Zipps gave the go-ahead for these transgender girls — and only those girls — to participate in girls’ sports, ruling the state law precluding that violates Title IX, the federal statute that bars discrimination based on sex in educational opportunities.

That, however, is just a preliminary injunction.

Now the case is set to determine whether to make that order permanent. And the parents of several biological girls want to be heard.

One factor in the case that Zipps said convinces her not to allow intervention by the mothers is the limited nature of the case.

“The outcome of the litigation will solely impact whether Jane Doe and Megan Roe can play school sports on girls’ teams,” the judge said, referring to the two transgender girls by the pseudonyms being used on the court filing.

More to the point, Zipps said, even if she ultimately rules in favor of the challengers, the daughters of the women who want to intercede won’t be affected.

“None of the proposed intervenors’ daughters will play on the same team as or complete against Jane Doe or Megan Roe,” the judge said.

The situation may be a bit different for Amber Zenczak, the mother of two girls who lives in Maricopa.

James Rogers, an attorney with the America First Legal Foundation, representing the mothers, said the Kyrene Elementary School District has an open enrollment policy which allows students from Maricopa to attend, even providing bus service. And Kyrene feeds high schoolers into the Tempe Union High School District.

All that, said James Rogers, an attorney with the America First Legal Foundation, sets up a situation where her daughters could be competing against or playing with Jane Doe.

Zipps said, however, someone who wants the legal right to intervene in a case must demonstrate something more.

“The ‘possibility’ that Mrs. Zenczak’s daughter will transfer to a school in the Kyrene district and compete with or against plaintiffs is too attenuated to demonstrate an interest that is sufficiently direct, non-contingent and substantial,” the judge wrote.

The other two mothers who were denied intervention are Anna Van Hoek of Gilbert and Lisa Fink of Glendale.

No matter what Zipps eventually decides in the case, that is unlikely to be the last word. Horne already has filed the legal papers asking the 9th Circuit Court of Appeals to dissolve the preliminary injunction and allow the state to enforce the law against the two transgender girls.