By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — The state’s top Republican lawmakers contend that it is a medical condition and not a discriminatory state law that entitles Arizona to bar transgender girls from participating in girls sports.

In a new court filing, the attorney for Senate President Warren Petersen of Gilbert and House Speaker Ben Toma of Peoria told Judge Jennifer Zipps she got it wrong in concluding that “biological boys” who have not reached puberty have no inherent advantage over girls of the same age.

“As virtually any elementary-school sports coach can attest, there is a competitive advantage for boys over girls before puberty, and there is not a scintilla of evidence that puberty blockers and hormone therapy eliminate this advantage,” wrote Justin Smith.

Zipps, in her ruling last week, said that’s not what the evidence shows.

But Smith, in asking her to delay her order — and allow the state to enforce its 2022 law, which bars transgender girls from competing with and against girls — has a new argument. He said the statute is not a matter of illegal discrimination.

“Their exclusion from girls’ teams is due to a medical condition, not the states’ sex-based separation of sports team,” he said.

The basis for that is the finding by Zipps, at the behest of the lawyers for the transgender girls, that their clients have “gender dysphoria.”

That is generally defined as an individual’s sense of mismatch between biological sex — the sex assigned at birth — and gender identity. And the judge said denying transgender girls the opportunity to participate in sports with other girls can be harmful, citing high rates of suicide in the transgender community.

But Smith said, that diagnosis cannot become the basis to allow those born male to participate in girls’ sports.

“It is not uncommon for biological males to have medical conditions that prevent them from participating on male sports teams,” he said. “And those males suffer the same injury of being unable to participate in sports.”

Hanging in the balance is Zipps’ ruling less than a week ago immediately barring the state from enforcing the 2022 law against the two transgender girls.

That was not a final order. And it permits the state to seek a full-blown trial on the issue.

But Smith said it’s not fair to allow the two transgender girls to participate in the meantime.

The 2022 law that says public schools and any private schools that compete against them must designate their interscholastic and intramural sports strictly as male, female or coed.

More to the point, it spells out that teams designated for women or girls “may not be open to students of the male sex.” And the statute says that is defined as the “biological sex” of the participant.

In filing suit, the National Center for Lesbian Rights and other attorneys did not seek to overturn the 2022 law entirely and entitle all transgender girls to participate on girls’ teams.

Instead they argued that each bid by a transgender girl should be considered individually. And in this case, they say that since neither girl is experiencing puberty — one is too young and the other is on puberty blockers — they should be allowed to play with and against other girls.

Zipps agreed. She even cited the policy of the Arizona Interscholastic Association which has approved a handful of such requests.

In her ruling, the judge also cited the social, emotional and physical benefits from participation in sports.

Smith, in his bid to delay the order, said that doesn’t just work one way.

“Needless to say, these same benefits of participating in competitive sports... are just as applicable to biological girls as transgender girls,” the attorney wrote.

What makes that relevant, he said, is that competitive sports “are zero-sum by their very nature.”

That means each team position or winning slot taken by a transgender girl, by definition “will displace biological girls.”

“In every volleyball and basketball game, a plaintiff getting coveted playing time displaces a biological girl who thus does not get that playing time,” Smith said.

“Cross-country meets are scored by ordering all runners who participate from first to last,” he continued. “That means that a transgender runner who takes any place but last displaces every biological girl who finishes after the transgender runner by at least one place.”

Smith also said that Zipps was wrong to consider only the question of whether transgender girls who have not reached puberty have an inherent physical advantage. He said the judge should have looked at why lawmakers adopted the whole ban, including issues of post-pubescent transgender girls, not just the effect of the law on these two.

One attends The Gregory School, a private school, in Tucson. The other is set to attend Aprende Middle School in the Kyrene School District.

Smith also is taking issue with the judge’s ruling that the 2022 law violates Title IX, a federal statute that prohibits discrimination on the basis of sex in sports.

“Title IX, from its inception, is understood to specifically authorize the separation of sports teams based on biological sex — exactly what the act does,” he said.

He specifically cited one court ruling which said that it is designed “to increase opportunities for women and girls in athletics.”

None of that, however, may help Petersen and Toma in their bid to allow the state to enforce the law.

Much of Zipps’ order is based on the premise that transgender girls — and, specifically, in this case where they have not entered puberty — are, in fact, girls for purposes of participating in sports.

“It would be psychologically damaging for a transgender girl to be banned from playing school sports on equal terms with other girls,” the judge wrote in her ruling.