Utah argues girls have not been harmed, seeks to dismiss transgender lawsuit

The lawsuit — brought on behalf of two Utah teens — seeks to overturn a ban on transgender girls playing in school sports.

(Trent Nelson | The Salt Lake Tribune) Clayton Middle School students protested HB 11, which bans transgender students from competing in sports, in Salt Lake City on Friday, April 22, 2022.

Attorneys for the State of Utah asked a judge to throw out a lawsuit challenging the Legislature’s ban on transgender girls competing in girls’ athletics, arguing, in part, that the girls have not yet been excluded from sports and therefore have not yet been harmed.

The lawsuit was brought on behalf of two girls, one who hopes to play on her high school volleyball team, the other hoping to compete on her high school swim team next year.

Former Utah Supreme Court Justice Thomas Lee, representing the state, filed the motions to dismiss late Wednesday night, contending that the first girl is academically ineligible to compete and would not be allowed to play even if the transgender ban was overturned. The other girl will not be banned until next year, if, the brief argues, she is good enough to make the team.

“Even if she continued to want to try out for the team,” Lee wrote, “it is difficult to predict what her athletic abilities will be at that time, including the probability that she will both be able to make and compete for her high school team, and that she would meet any other eligibility requirements.”

Further, because attorneys for the plaintiffs refused to release the girls’ mental health records, Lee argued that they could not show that the girls were emotionally harmed by being specifically banned from the teams.

The attorneys representing the girls — identified in court documents under the pseudonyms Jenny Roe and Jane Noe — argued that House Bill 11 unconstitutionally discriminates against the girls by explicitly depriving them of rights enjoyed by other students. They are asking 3rd District Judge Keith Kelly to block the law being applied.

HB11 passed in the waning hours of the 2022 Legislative Session. Gov. Spencer Cox vetoed the measure, arguing that it was cruel, targeting the one transgender girl in the state known to be playing high school sports, and that the inevitable litigation might bankrupt the Utah High School Activities Association.

Republican legislators overrode the governor’s veto and in a special session passed legislation to indemnify UHSAA against litigation costs.

The state’s brief contends that the Legislature acted in the interest of protecting female athletes and maintaining the integrity of women’s sports.

Currently, 18 states ban transgender girls from competing in publicly funded sports.

(Al Hartmann | The Salt Lake Tribune) Former Utah Supreme Court Associate Chief Justice Thomas Lee.

In the brief, Lee — the brother of Utah Sen. Mike Lee — argues that the law does not treat people differently because the Utah Legislature based the criteria on biological sex at birth. That means the girls bringing the lawsuit are, for purposes of the law, considered male.

It does not violate Utah’s equal rights language because, the state contends, it only applies to political rights and sports is not a political right.

And it does not violate constitutional language depriving an individual of basic rights without due process because there is a process available.

“The process due in this situation is the political process — voting and persuasion,” Lee wrote.

The attorneys for the girls — former Supreme Court justices Deno Himonas and Christine Durham — will file a reply to the state’s motion to dismiss later this month. A hearing on the matter is scheduled on Aug. 11.