The American Civil Liberties Union of Utah filed a lawsuit Tuesday against the state’s newly passed girls’ sports law, suing on behalf of two male-born teen athletes who want to play on female teams based on their gender identity.
The motion, filed in Utah state court, seeks to block House Bill 11 from taking effect July 1, arguing that the law violates the state constitution.
Republican Gov. Spencer Cox vetoed the bill on March 22, but the Republican-controlled state legislature overruled his veto three days later.
“If HB 11 is allowed to go into effect, these children will be barred from playing the sports they love,” said the press release from the ACLU, which is fighting the law with the National Center for Lesbian Rights and the law firm Wilson Sonsini Goodrich & Rosati.
At least three of the 17 states passing Fairness in Women’s Sports laws have been challenged in court, but the Utah lawsuit has a twist: It was filed on behalf of two teens who have taken puberty blockers since they were 12 or 13.
The anonymous students were identified as Jenny Roe, a 16-year-old volleyball player who started taking puberty blockers at 13, and 13-year-old Jane Noe, a swimmer who began puberty blockers at 12.
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“This law bans transgender girls from competing with other girls in every sport, at every grade level, and regardless of each girl’s individual circumstances,” said Christine Durham, former Utah Supreme Court Chief Justice and Wilson Sonsini. “It cannot survive constitutional scrutiny and it endangers transgender children.”
According to the lawsuit, Jenny Roe played last year on the high school girls’ volleyball team in the Granite School District but would be prevented from participating as a senior under the Utah law.
“My last season playing volleyball was one of the best times of my life. I loved my teammates, felt part of something bigger than myself, and finally had a way to socialize with friends after being cooped up during the pandemic,” said Jenny Roe. “This law devastated me. I just want to play on a team like any other kid.”
The school has no boys’ volleyball team, but even if it did, “it would be painful and humiliating for Jenny to be forced to play as the only girl on a boys’ team.”
“It would also contradict her medical treatment for her gender dysphoria,” said the lawsuit. “The Ban thus effectively denies Jenny the opportunity to participate in school sports at all.”
ACLU Utah, along with @NCLRights,@wilsonsonsini & with support from @EqualityUtah, just challenged the law that bars #trans girls from competing in school sports on behalf of 2 Utah families. Every kid deserves the chance to play sports. Read More: https://t.co/XyRIorc5ja pic.twitter.com/GfjBt3tYXx
— ACLU of Utah (@acluutah) June 1, 2022
The law allows male or female students to participate on a female team “outside of competition in an interscholastic athletic activity,” but the lawsuit said that wasn’t an option.
“Jenny will not participate on a girls’ team if she cannot be a regular member of the team who is eligible to compete in matches, just as other girls are able to do,” the filing said.
The second student, Jane Noe, has participated in USA Swimming girls’ events and wants to join the girls’ swim team when she begins high school in 2023, but only as a “regular member.”
“Jane does not wish to participate on a girls’ team if she cannot be a regular member of the team who is eligible to represent her school in meets against other teams, as other girls are able to do,” said the lawsuit.
The filing takes on the issue of male athletic performance before and after puberty, a hotly debated topic as male-to-female transgender athletes increasingly seek to compete on girls’ and women’s teams.
“There is a scientific consensus that any differences between girls and boys with respect to athletic performance are due primarily to differences in circulating testosterone levels, which begin to diverge only after the onset of puberty,” said the lawsuit.
In addition, adolescents who receive puberty blockers and hormones “typically have circulating testosterone levels comparable to other girls and significantly lower than boys who have begun pubertal development.”
Not everyone agrees. Gregory Brown, professor of exercise science at the University of Nebraska at Kearney, has testified that male adolescents still retain physical advantages despite puberty blockers.
In a 2020 court declaration, he cited articles illustrating that “boys as young as six years old perform better than comparable age matched girls in health-related measures of physical fitness including strength, speed, endurance, and jumping ability.”
“These advantages in health related measures of fitness translate to improved athletic performance in boys when compared to girls likely before and certainly during and after puberty,” he said in testimony in Hecox v. Little, the case challenging the 2020 Idaho girls’ sports law.
A federal judge stopped the law from taking effect in August 2020. Last year, a federal judge blocked a similar law in West Virginia pending the outcome of a lawsuit filed on behalf of an 11-year-old cross-country runner.
The ACLU filed a lawsuit in November challenging a 2021 Tennessee law requiring students to participate based on their sex at birth on behalf of a 14-year-old golfer who was born female but identifies as male.
Most of the state laws have no restrictions on biological girls who want to try out for boys’ teams, but the Tennessee law requires all student athletes to compete based on sex at birth.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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