By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — President Trump signed an order Wednesday designed to keep transgender girls and women out of sports designated for females.

The order could affect — and potentially undermine — a court ruling that has allowed two transgender girls in Arizona to play in girls’ sports.

The president declared it is the interpretation of his administration that Title IX — a 1972 federal law designed to prohibit discrimination based on sex in education programs and activities — was never designed to give rights to those who were born as biological males. At a signing ceremony at the White House, he declared an end to what he called “transgender lunacy.”

“We will not allow men to beat up, injure and cheat our women and our girls,” Trump said. “From now on, our women’s sports will be only for women.”

The president cited various incidents where he said biological male athletes took medals away from women.
“But all of that ends today because, with this executive order, the war on women’s sports is over,” he said.

And Trump’s order also has teeth.

“With my action this afternoon we are putting every school receiving taxpayer dollars on notice that if you let men take over women’s sports teams or invade your locker rooms you will be investigated for violations of Title IX and risk your federal funding,” the president said in the announcement from the White House. “There will be no federal funding.”

What’s significant about Trump’s order is that a federal judge in Arizona cited Title IX in voiding a 2022 Arizona law that bars students whose “biological sex” as birth was male from participating in girls sports in public or charter schools.

That same law covers private schools that compete with those schools.

In that 2023 ruling, Judge Jennifer Zipps said that runs afoul of the federal law.

She said it deprives transgender girls of “the benefits of sports programs and activities that their non-transgender classmates enjoy,” saying that they, too, are protected by Title IX. And Zipps, in issuing a preliminary injunction on behalf of two transgender girls who sued, said they would suffer irreparable harm under the law.

Her order was upheld by the 9th Circuit Court of Appeals.
Strictly speaking, that order did not strike down the law. Instead it barred enforcement of the law as it applies to the two transgender girls, one who attends The Gregory School, a private school in Tucson, and the other who was set to attend Aprende Middle School in the Kyrene School District.

But in her ruling, Zipps upheld the existing policy of the Arizona Interscholastic Association which, on a case-by-case basis, has allowed students to participate in sports based on the gender with which they identify. Among the issues considered by AIA is how long the child has identified as female and whether the applicant has gone through puberty.

And unless overturned, Zipps’ order paves the way for other transgender girls to seek similar relief.

That ruling, however, is not the last word. It simply allows the two transgender girls to participate while the legality of the law gets still-pending full-blown trial.

State schools chief Tom Horne, who is the defendant in that lawsuit, said what will happen now all has changed because of the president’s action. He said it will help him win the case.

“We’ll use the argument about Title IX, as currently interpreted by the federal government in court,” he told Capitol Media Services. “If it doesn’t win sooner, it will win later.”

Ultimately, Horne said, he expects the issue to be decided by the U.S. Supreme Court.

Even if the ability of challengers to cite Title IX goes away, that may not end the legal arguments. There also is still the argument over whether the 2022 Arizona law violates separate constitutional equal protection arguments the transgender girls — Horne insists on calling them “biological boys” — can present.

As worded, the statute says affected schools must designate their interscholastic or intramural sports strictly as male, female or coed.

But it also says teams designated for women or girls “may not be open to students of the male sex.” There is, however, no similar prohibition against girls participating in boys’ sports.

Horne said that distinction is legally justified.

“Boys have an inherent advantage that makes it unfair,” he said. His lawyers have cited various studies — disputed by challengers — claiming that advantage in strength exists even in situations where those born as male have not yet gone through puberty.

“If girls want to participate in boys’ sports, I don’t see where that’s a problem,” Horne said.

Rachel Berg, an attorney with the National Center for Lesbian Rights, who is representing the two girls, said Wednesday she believes Trump’s executive order will not withstand legal challenge.

“The executive order bans all transgender girls from playing sports regardless of their individual circumstances,” she told Capitol Media Services. “This is harmful to all girls because it requires young girls to answer invasive personal questions or even undergo physical inspections by strangers if they want to play sports.”

Trump’s order was not a surprise. At a rally last year in Arizona, Trump promised to “keep men out of women’s sports.” On his first day in office last month, he issued an order requiring the federal government to define sex as only male or female. And he said that has to be reflected on official documents, including passports.