Thursday, July 20, 2023

UPDATE: GOP Lawmakers Ask Judge To Let Arizona's Law Banning Transgender Girls From Playing On Girls Teams To Go Back In Effect Pending Appeal

UPDATE, 7/24, 11:30am: "GOP Lawmakers Ask Judge To Let Arizona's Law Banning Transgender Girls From Playing On Girls Teams To Go Back In Effect Pending Appeal"

It's not very likely to be granted, but State Senate President Warren Petersen and House Speaker Ben Toma today asked Judge Jennifer Zipps to allow Arizona to enforce its law banning transgender girls from playing school sports on girls teams while the case is appealed to the 9th Circuit.

Judge Zipps is unlikely to grant that stay because she forcefully found that the 2022 law discriminates against the two girls who brought the lawsuit. When she denies today's motion, Toma and Petersen say they will ask the 9th Circuit to stop the injunction from going into effect.

The Republican lawmakers told the judge her ruling was "clearly erroneous" for a number of reasons, making it likely that it will be overturned on appeal. (They are not asking her to reconsider the decision itself.) However, they inadvertently turned themselves around, when they titled one of their sections "The Court’s finding that biological males who do not undergo male puberty have no competitive disadvantage over female athletes is clearly erroneous." The judge ruled that the transgender girls have no competitive advantage, and cited the evidence in the record which supported that conclusion.

Petersen and Toma contend that the "overwhelming evidence" that pre-puberty boys have a competitive advantage, and that the judge incorrectly discounted it "entirely because it supposedly arises from “other factors such as greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of the boys and girls surveyed.”

They ask Judge Zipps to rule by July 31.

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UPDATE, 7/21, 1:30pm: "UPDATE: GOP Lawmakers APPEAL Injunction Allowing Transgender Girls To Play On Girls' Teams"

State Senate President Warren Petersen and House Speaker Ben Toma have APPEALED yesterday's Order preventing Tom Horne from banning two transgender girls from playing girls team sports in their schools.

The Ninth Circuit will be asked to decide whether the preliminary injunction stopping the 2022 Arizona law should remain in place.

Toma and Petersen asked to intervene after Attorney General Kris Mayes' office declined to defend the law. They are represented by the James Otis Law Group, LLC out of St. Louis. State Superintendent of Public Instruction Tom Horne is defended by his in-house attorney (and former State Rep.) Maria Syms and outside counsel Dennis Wilenchik.

CLARIFICATION: Yesterday's 35-page Order granting the preliminary injunction specifically prevents Horne from enforcing it as to the two plaintiffs. Judge Zipps' Order does speak more broadly about the law violating Title IX. Yesterday, we also referred to the law as preventing transgender girls from participating in "school sports"; that reference should have been to "girls' school sports".


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Original article, 7/20: "BREAKING: Judge STOPS Arizona Law Banning Transgender Girls From Participating In Girls' School Sports"

U.S. District Court Judge Jennifer Zipps today enjoined Arizona Superintendent of Public Instruction Tom Horne from enforcing a new law banning transgender girls from playing school sports, and ordered the Arizona Interscholastic Association to make sure their policies continue to allow transgender girls to participate on girls teams.

The judge systematically considered - and, rejected - the several arguments that Horne and Republican legislative leaders gave in defense of the 2022 statute. For example:

Defendant Horne’s and Intervenors’ argument that the Act does not mention transgender girls and, therefore, does not discriminate based on transgender status or gender identity fails. The Act’s disparate treatment of transgender girls because they are transgender is clear on the face of the statute and makes it facially discriminatory even if the statute does not expressly employ the term “transgender”.

Horne had previously tried to get the case filed on behalf of two girls in Tucson and Phoenix reassigned to a Phoenix-based judge, but Zipps and the Ninth Circuit rejected that.

(This is a developing story. Please check back for updates.)

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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