Transgender girls face ‘devastating harms’ from Utah’s athletic ban, attorneys argue

An attorney representing three transgender girls fighting the ban is requesting a hold on it being enforced. The state, though, argued against that.

(Leah Hogsten | The Salt Lake Tribune) A 13-year-old Utah transgender girl swims on April 4, 2022. The teen is one of three plaintiffs fighting against the state's ban on transgender girls competing in high school sports.

Three transgender girls are experiencing “devastating harms” and discrimination under Utah’s ban blocking them from competing in high school girls sports teams, their attorneys argued during a court hearing Thursday.

One of the girls said her grades plummeted after she learned the ban would keep her from playing girls volleyball, separating her from the teammates she’d already played with last year. Another said she’s stopped swimming, where she found most of her friends, because she no longer sees a point if she can’t compete. The third said her mental health has suffered because of the “negative attention” of the law.

And more transgender girls beyond those three challenging the ban in a lawsuit are likely to be impacted, too — emotionally, physically, socially — by being kept out of sports because of their identity, the attorneys argued.

To limit that immediate harm, they have asked a judge to place a temporary hold on the ban to keep it from being enforced.

“These girls are dealing with the shame, the pain, the humiliation of being treated differently,” argued attorney Shannon Minter. “Sports are a big part of who they are, and the ban has taken that away from them. This law is singling them out for being transgender.”

Minter, the legal director of the National Center for Lesbian Rights, said without a preliminary injunction that would allow transgender girls to continue competing on girls teams when they return to Utah schools this fall, they’ll be left in a “torturous limbo” as the case makes its way through the court. He pleaded for them to be able to play now.

Third District Judge Keith Kelly listened to hours of arguments Thursday from both sides, including prosecutors with the Utah Attorney General’s Office, who fought against enjoining the ban.

Kelly said he expects to issue a decision on whether to temporarily lift the ban or not sometime early next week. A hearing is currently set for Tuesday morning to announce a ruling.

“I know you need a decision quickly,” Kelly said Thursday. “But there are a lot of issues, and I want to go back and look at the case law and review the evidence.”

The controversial ban, known as HB11, was first passed by Utah lawmakers at the end of the legislative session this spring. Originally, the measure was going to create a commission to rule on whether individual transgender athletes should be able to compete, but it became an outright ban at the last minute, with the commission to take effect if the ban is eliminated.

Gov. Spencer Cox initially vetoed the measure — pleading to protect “our most marginalized transgendered youth” — a statement which Minter quoted several times in his arguments. But lawmakers reconvened again during a special session and voted to override that veto. The ban took effect on July 1.

The law has been part of a nationwide, conservative effort to ban transgender girls from high school girls teams. Utah — where transgender girls would be allow to practice but not compete on teams — is among 18 states with similar measures.

The state’s attorneys argued in court Thursday that the law 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 argued.

The ban is needed, said attorney Thomas Lee, a former Utah Supreme Court justice and brother of U.S. Sen. Mike Lee, to “preserve the integrity of women’s sports.”

“Sometimes the principal of equality requires treating everyone the same,” Thomas Lee said. “Sometimes the principal of equality requires recognizing the salient differences between the sexes. We have long had separate women’s sports because the only way to be equal toward women is to protect them from the biological advantages of men.”

He mentioned the military draft as an another example.

The largely anticipated lawsuit challenging the athletic ban from the three transgender girls and their parents — backed, too, by the ACLU of Utah — was filed on May 31. The Utah High School Activities Association, as well as Granite and Jordan school districts and their superintendents, are named as defendants.

Here is a breakdown of the case, legal arguments, what the judge is weighing now with the proposed preliminary injunction, and a look at the plaintiffs:

What happens if the judge does grant the preliminary injunction?

A preliminary injunction essentially places a hold on a disputed action. If the judge grants it in this case, the ban would temporarily not be enforced.

But the state’s backup process for transgender athletes would move forward. Under that, a commission will make decisions on which transgender girls can compete. The members are set to evaluate a transgender player’s wingspan, weight and height — and whether a girl is taking hormone blockers — to determine if she might have an unfair advantage, according to the Legislature’s plan.

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

What if the preliminary injunction isn’t granted?

Transgender girl athletes in Utah would continue to be banned from competing in high school girls sports as the case moves through the court.

Who are the three plaintiffs?

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

During this week’s hearings, they also were seated in another court room so no one could see them.

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.

In a statement to the court, she wrote that she has known she was a girl since she was age 11. She started taking puberty-blocking medication two years later.

Before playing volleyball, she said she felt isolated at school and didn’t have much of a social life. “Once I joined the team,” she wrote, “I had a great group of friends who supported me and who I loved being around.”

She also said she started to care more about keeping up her grades and felt happy about going to school.

“This law scares me,” she wrote. “I cannot imagine missing my last volleyball season with my team and I have been really upset just thinking about this. If I cannot play with my team, I am worried that I will not even want to go to classes or to 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 said she’s known she was a girl since age 3. She started taking medication to stop puberty last year.

She loves swimming and planned to try out for the high school girls swim team in ninth grade, she wrote in her statement. But the ban, she said, made her feel unwelcome and she’s stopped practicing for the time being.

“It hurts to know that some people think I do not belong on my team or with my teammates,” she wrote.

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 told her family she was transgender last fall and started puberty-blocking medication in May.

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.

“It would be embarrassing to put in all the work with my team only to be told that I cannot be with them when it matters the most,” she wrote. “That is not being part of a team. It is more like being a cheerleader or a water girl.”

There is at least one other girl who is known to be impacted by the law in Utah. She is a swimmer in high school, her coach has previously confirmed to The Salt Lake Tribune, but she is not a plaintiff in the lawsuit.

Why do the plaintiffs want to get rid of the ban?

The attorneys for the plaintiffs say the law is discriminatory, stigmatizing and denies transgender girls a constitutional right based on their identity.

They say all transgender girls should have an equal opportunity to try out for a team. Without that hope, they experience widespread harm, injuring their confidence and limiting their social networks, as the plaintiffs have testified in their statements.

“It’s falling like a sledgehammer on these kids,” Minter said.

They’re arguing for the ban to be dismissed. But they are not arguing for the commission to be disbanded, even though it’s controversial.

Both sides have agreed that, depending on the stage of puberty a teen has gone through, it could impact their athletic ability. Minter said it’s not that every transgender girl will be guaranteed to play for a high school girls team, but that transgender girls will not be barred solely because they are transgender.

Even though all of the plaintiffs in the case are taking hormone blockers, he said the commission should weigh each case individually.

And they should consider, he added, the benefits of playing sports that the plaintiffs had doctors testify to, especially for transgender youth in reducing suicide risk.

What is the state’s argument for keeping the ban?

The state’s attorneys say that by nature of being born a boy, transgender girls have a natural athletic advantage.

They cited federal law under Title IX that specifically designed protections for women’s sports.

Lee asked the judge how allowing transgender girls to participate on girls sporting teams would be different from allowing any boy to play on a girls team if he thinks he has a better chance of winning there.

By opening up the field, he said, “it jeopardizes another constitutional right” for those born girls.

Lee also questioned each of the plaintiffs, as well as how they would be harmed, suggesting that each of them has a disqualification that would keep them from competing despite the ban.

Jenny Roe, he noted, is not academically eligible after her grades slipped at the end of last year. (Minter acknowledged that, but said she plans to appeal if the ban is lifted. Her grades dipped, he said, when she learned about the ban and became discouraged.)

Jane Noe is still a year away from playing for a high school team, Lee argued, so she’s not harmed right now. (Minter agreed, but said she’s being harmed now because the ban has led her to stop training.)

And Jill Poe, Lee said, according to medical records, hasn’t been taking hormone blockers for enough time, so he believes the commission would not approve her participation anyway. (Minter countered that the commission is set to look at more than just medications when deciding if a transgender athlete should be eligible.)

Additionally, the defense argued that kids everywhere experience mental health issues from being cut from teams or just being adolescents. Lee said this harm is not significantly different.

Lee took strong issue with many medical records being blocked in the case, saying it gave the defense no opportunity to show the girls were being emotionally harmed as a result of the ban.

What does the science say about transgender girls’ athletic abilities?

Both sides argued, providing their own doctors to testify, about transgender girls’ bodies and potential athletic advantages.

The plaintiffs said there is no inherent athletic ability based on someone’s birth sex. Physical skill and strength is not determined by anatomy, Minter said.

The state argued against that, saying testosterone is higher in boys from birth, even before puberty, and gives them an inherent advantage, even as early as 6 months old.

Even small differences, too, Lee said, are a big deal in athletic competitions. And hormone blockers, he said, may shrink muscle mass but they do not typically affect height.

He argued that the science is still “evolving.”

What was the law before the ban?

Before the ban, the Utah High School Activities Association allowed transgender girls to compete in high school sports under their preferred gender if they had undergone a year of hormone therapy. That is a national standard used in many athletic competitions, including the Olympics.

The law before the ban already did not allow boys to play on girls’ teams, if they chose, because they would have to be taking the required hormone-blocking medication to do so.

To protect the USHAA from litigation costs with the new ban, the Legislature did move to indemnify the organization and cover fees.

Could the case be dismissed? If not, when will it move forward?

Judge Kelly declined two separate motions from the state on Wednesday to dismiss the case, so it will move forward to a trial.

The earliest that trial could be, Kelly said, is sometime in next year. Cases got stacked up and backlogged because of the pandemic, the judge 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.

“This case is going forward one way or another,” Kelly said.

What have other courts ruled in similar cases outside of Utah?

Courts in three other states have granted preliminary injunctions against similar athletic bans. That has happened in West Virginia, Indiana and Idaho.

Additionally, a federal judge enjoined a ban in Alabama that blocked health care for transgender minors, and a federal court ruled that Ohio has to temporarily stop enforcing a law preventing transgender people from changing their birth certificates.