Sunday, October 2, 2022

Utah judge temporarily halts law barring male-born athletes from girls’ scholastic sports

A Utah judge has blocked a state law barring male-born athletes from competing in female scholastic sports, sending decisions on athletic eligibility to a newly created special commission.

Third District Court Judge Keith Kelly granted the preliminary injunction Friday sought by three teens who were born male but identify as female, saying that the state law discriminates on the basis of sex because it “classifies individuals based on transgender status and, therefore, on sex.”

Unlike similar laws in other states, however, the Utah statute known as House Bill 11 contains a trigger clause that creates a School Activity Eligibility Commission to make determinations on a case-by-case basis if the law is invalidated or paused by an injunction.

“Thus, the effect of this preliminary injunction will not mean that transgender girls will automatically be eligible to compete on their school’s girls’ teams,” Judge Kelly said. “Rather, it will allow them to compete only upon the commission’s determination that their being able to compete is fair under all of the circumstances.”

The National Center for Lesbian Rights, which represented the teens with the American Civil Liberties Union of Utah and the Wilson Sonsini law firm, released statements from the parents cheering the ruling. The teens and parents were identified by pseudonyms in the court filing.

“My husband and I are very relieved by this decision,” said parent Debbie Roe. “We are grateful the court understood how much harm this law has caused, which has been a huge source of stress and trauma for our child. Our daughter just wants the same chance as other kids to make friends and play on the team she loves. Today’s ruling gives her the opportunity to do that.”

The Utah bill passed in March after the state legislature overrode Republican Gov. Spencer Cox’s veto. The measure took effect July 1.

The bill’s sponsor, Republican state Rep. Kera Birkeland, said she was confident the commission would ensure competitive fairness in girls’ sports.

“From the beginning, my intention has been to protect and preserve girls’ sports,” she said in a statement on Fox13. “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 added: “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.”

Judge Kelly cited the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which banned discrimination based on gender identity in employment.

“By definition, a transgender person is one whose sex differs from that listed on the person’s original birth certificate, which is based on their anatomy at birth,” said Judge Kelly in the 16-page ruling. “The United States Supreme Court has explained that ‘it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.’”

Advocates of single-sex sports have argued that the court’s majority opinion stressed that “we do not purport to address bathrooms, locker rooms, or anything else of that kind,” and only applied to firing employees based on sexual orientation or gender identity.

The Utah Attorney General’s office had no comment on Friday’s ruling.

Judges now have blocked laws in at least four of the 18 states that ban male-to-female transgender athletes from participating in female sports. The statutes are also on hold pending the outcome of litigation in Idaho, West Virginia and Indiana.

A flap over transgender athletes erupted Wednesday when David Spatafore, spokesperson for the Utah High School Activities Association, told a legislative committee that the group had investigated a complaint by parents asking last year whether a winning athlete was transgender.

Mr. Spatafore said the association found she had been female since kindergarten and therefore it was unlikely she was transgender, adding that the association has received such complaints in the past, the Salt Lake Tribune reported.

Ms. Kirkeland took issue with some of the media coverage, saying “the complaint was made long before HB11 became law.”

“If you believe the complaint had anything to do with HB 11, please know this, parents have made complaints about transgender participation for many years,” she said on Facebook. “With HB 11 in effect, these complaints should end as parents can feel confident that the playing field is fair, and the competition is healthy and balanced.”

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