Transgender girls in Utah can compete again after judge grants injunction blocking state’s sports ban

Judge Keith Kelly wrote in his ruling that the ban is “plainly unfavorable treatment” and granted a preliminary injunction.

(Francisco Kjolseth | The Salt Lake Tribune) West High School students chant “trans youth are valid!” as they wave a transgender flag during a staged walkout on Wednesday, April 6, 2022 to protest HB11, which bans transgender girls from participating in female school sports. A judge granted a preliminary injunction, stopping the ban from being enforced, on Friday, Aug. 19, 2022.

Transgender girls in Utah can return to competing in high school sports on a girls’ team this fall after a judge temporarily blocked the state from enforcing its controversial ban.

It’s a big — though still early — victory in the case for the three teenage transgender girls here who brought the challenge. They were barred from competing under their preferred gender after state lawmakers passed the athletic ban earlier this year.

Third District Judge Keith Kelly said in his ruling posted Friday that granted the hold, known as a preliminary injunction, that the state’s ban is currently harming the girls by taking away opportunities and creating a stigma.

“The ban singles out transgender girls and categorically bars them from competing on girls’ sports teams,” he wrote. “At the same time, other girls are free to compete. This is plainly unfavorable treatment.”

An attorney representing the girls, Shannon Minter, celebrated the decision.

“The girls and their families are very relieved,” said Minter, who is the legal director of the National Center for Lesbian Rights. “Having this law in effect was causing them enormous pain and stress. … Now they have a chance to go back to being kids and doing the things that other kids do.”

Now that the ban is on hold, though, the state’s back-up process for vetting transgender girl athletes will move forward.

Under that, a commission will make decisions on which transgender athletes can compete. The members are set to evaluate a player’s wingspan, weight and height — and whether a player is taking hormone blockers — to determine if a transgender girl, in particular, might have an unfair advantage in a sport by being born male, according to the Legislature’s plan.

Some don’t see that setup as a better option, suggesting that measuring teenagers’ bodies crosses boundaries.

(Rick Egan | The Salt Lake Tribune) Two people get confrontational at a rally on the Capitol steps before the Legislative special session on Friday, March 25, 2022. The Legislature overrode Gov. Spencer Cox's veto of HB11, which bars transgender girls from competing in school athletics.

The members of the commission have not yet been selected. A spokesperson for the Utah Legislature said Friday that the participants will be announced “in the coming days.”

According to HB11, the law setting up the ban and the fall-back commission, the group will include these seven individuals: a mental health professional, a statistician “with expertise in the analysis of medical data,” a physician who has worked in gender identity health care, a sports physiologist, a representative of the Utah High School Activities Association (which oversees high school sports in the state), an athletic trainer and one ad hoc member.

That last member will differ for each student coming before the commission. They will either be a coach or official or other individual from the student’s school or sport.

Besides that person — who is named by the UHSAA — the members are selected by the House speaker, Senate president and governor.

On Friday, Jennifer Napier-Pearce, the governor’s senior communications advisor, said Gov. Spencer Cox is “reviewing the opinion including his responsibilities under current law.”

Cox has been outspoken in opposing the ban. He initially vetoed the measure, pleading to protect “our most marginalized transgendered youth.” Lawmakers voted to override that veto and passed the ban during a special session.

Rep. Kera Birkeland, R-Morgan, who sponsored the ban, continued to say Friday that it is imperative to “preserve girls’ sports.”

“Although the judge did not rule in our favor, female athletes can still be assured they can compete fairly as we will soon have a commission in place,” she said. “For every girl who is feeling unseen or unheard right now — I hear you. Be proud of the body you were given and its abilities. You are fierce and amazing just as you are.”

The ban is part of a nationwide, conservative effort to block transgender girls from high school girls teams. Utah is among 18 states to pass similar measures.

The measure here took effect in July. The lawsuit from the three girls shortly followed.

Arguments and the judge’s ruling

All three of the transgender girls are going by pseudonyms in court records to protect their privacy as minors.

The first girl, referred to as “Jenny Roe,” is a 16-year-old who will be a high school senior this fall in Granite School District. She played girls volleyball last year and would like to again. She also wants to try out for the girls basketball team. She said sports have given her the drive to do well in school.

The second student is referred to as “Jane Noe.” She’s 13 years old and will be in eighth grade in Granite School District this fall. She planned to try out for the high school girls swim team in ninth grade. But the ban, she said in a statement to the court, made her feel unwelcome, and she’s stopped practicing for the time being.

The third plaintiff, who most recently joined the lawsuit, is referred to as “Jill Poe.” She is 14 years old and will start ninth grade this fall in Jordan School District. She wants to try out for the girls cross-country and track teams this year. She said she hopes it will help her find friends at a new school.

The girls have claimed in their case that the ban is discriminatory and has hurt them socially, physically and emotionally. Their attorneys — which include backing by the ACLU of Utah — have also argued that it violates the Utah constitution by denying transgender girls an equal opportunity to play based on their identity.

Their lawsuit is pushing for the ban to be dismissed. But they are not arguing for the commission to be disbanded, even though it’s controversial.

The state’s attorneys have argued that the ban is an effort to protect those who were born girls from unfair competition. They said transgender girls have inherent physical advantages by being born boys and going through puberty, such as bigger bodies, hearts and lungs, wingspans and height; they would be stronger, faster, knocking other girls out of spots on a team, they have argued.

In his 16-page ruling on the preliminary injunction, Judge Kelly walked through each argument, ultimately saying that the girls have shown “substantial likelihood” that the ban does violate their rights and suggesting they have a strong case moving forward.

All three of the girls, he noted, have started hormone therapy, which has largely stopped their progression through puberty. Based on doctor statements, he said, it doesn’t appear any of them has any natural advantage being born a boy.

“Plaintiffs identify and live as girls, interact with others as girls, and are taking medication to prevent them from going through male puberty,” he said. “But the ban does not treat them as girls.”

Jane Noe, he specifically notes, started taking hormone blockers at age 12; she’s the smallest girl on her swim team and did not qualify for regionals. She doesn’t have any inherent advantage, Kelly said.

And even if they hadn’t started that treatment, Kelly writes in his decision, it’s not clear from the medical science that they or other transgender girls would have a physiological advantage based solely on their sex at birth. But he said the commission will be in place to decide on individual cases, showing there’s another way for the state to regulate suspected interference without an outright ban on all transgender girl athletes.

Kelly also points out that under current Utah law, a person of any age may petition to change the sex listed on legal documents, after the Utah Supreme Court ruled in favor of two transgender plaintiffs last year.

Jane Noe, he notes, has already gone through that process. It shouldn’t be permissible for the state to then say she’s only female on documents but not for sports, Kelly said.

“So Jane is legally a female,” he said. “But the ban treats her less favorably than other persons who are legally females.”

Kelly additionally says he finds no validity to the state’s argument that allowing transgender girls on girls teams would harm other girls participating by displacing them from spots on the roster. The number of transgender girls who want to compete is “an extremely small minority,” he said, with the UHSAA saying only one transgender girl competed last year.

“Proponents of the ban claimed that it is necessary to protect girls’ sports,” Kelly said. “But unlike the reasons for providing separate teams for boys and girls, which courts generally have found to withstand constitutional scrutiny, the defendants do not offer persuasive reasons to categorically ban all transgender girls from competing on girls’ teams.”

He said if transgender girls cannot compete on girls team, though, they have “no meaningful opportunity to play at all.” That, he said, is a significant harm and should be seen as sex-based discrimination.

Kelly then cited courts in three other states that have granted preliminary injunctions against similar athletic bans. That has happened in West Virginia, Indiana and Idaho.

Celebrating the decision

Minter, the attorney for the girls, said they’re excited by the ruling and feel better already, “not under the constant weight of this law that singled them out in such a cruel way.”

Jane Noe’s mom said in a statement Friday on the ruling that she sees it as “a win not only for my child but for all girls in this state.”

She added: “I am grateful the court has put this dangerous law on pause and that, at least for the moment, all Utah children can know that they are valued and supported.”

(Leah Hogsten | The Salt Lake Tribune) A 13-year-old transgender girl swims April 4, 2022. The teen has quit the sport because the passage of Utah's HB 11 that bans transgender girls from playing school sports.

Minter said the mom was also heartbroken to hear this week that parents had complained a high school athlete might be transgender after she beat their daughters. The UHSAA investigated the claim, digging into the girl’s record back to kindergarten without telling her or her parents.

That setup and the discrimination from the ban harms all girls, said the mom and Minter.

The mother of plaintiff Jenny Roe said the law has been causing her daughter stress and trauma.

“Our daughter just wants the same chance as other kids to make friends and play on the team she loves,” she said. “Today’s ruling gives her the opportunity to do that.”

The decision was also celebrated by LGBTQ groups and advocates in the state. Troy Williams, executive director of Equality Utah, said he’s grateful for the ruling and the courage of the plaintiffs.

“Of course, this issue is not over,” he said, “but we are one step closer to finding a fair and equitable path for transgender children to play the sports they love.”

Williams said he will be watching closely now as the commission goes into effect to ensure that it is not having the same effect as the ban.

The Utah Pride Center said in a statement Friday that it is concerned about the commission.

“While parts of HB11 have been mitigated, the injunction fails to shield transgender girls by allowing a commission to make a determination whether or not a transgender girl may play.”

The center added that it opposes HB11 “in any force.”

Opposed to the ruling but supporting the commission

Several state leaders weighed in on the injunction Friday, expressing disapproval for the decision.

Utah House Speaker Brad Wilson said he’s “disappointed” by the ruling. But, he noted, he does look forward to instituting the commission “that ensures Utah’s female athletes can compete on a level playing field.”

Utah Senate President Stuart Adams similarly pointed to the commission as the way forward while the lawsuit over the ban continues through the court. Adams called the commission a “first-of-its-kind solution” and “data-driven.”

The exact parameters of how the commission will evaluate athletes have not been set. They will be decided by the members, once they meet.

Sen. Curt Bramble, R-Provo, who co-sponsored the original ban, also weighed in, continuing to support the ban as a way to protect women’s sports.

“For decades, women have fought to have equal opportunities in athletics, and fair opportunities are worth protecting,” Bramble said in a statement.

He also noted “some may disagree” with the commission, but he supports the idea in place of the ban.

What’s next?

The injunction is temporary while the lawsuit against the ban continues to a trial. And it will be a long process.

Former Utah Supreme Court Justice Christine Durham, who is now representing the girls in this case as part of the plaintiffs’ team, said Friday: “We look forward to moving forward with the case and securing a permanent decision blocking the law from taking effect.”

Judge Kelly has previously dismissed motions from the state to dismiss the case. The earliest that trial could be is sometime in next year. Cases got stacked up and backlogged because of the pandemic, the judge has noted about the delay.

But it’s likely the case will be on an expedited schedule as both sides have agreed to a bench trial, meaning that a judge will make a ruling rather than a jury.

It’s also possible, as some lawmakers noted earlier this week, that another lawsuit comes up to specifically challenge the commission.

(Trent Nelson | The Salt Lake Tribune) Pictured is Judge Keith Kelly on Tuesday, Sept. 27, 2016.