by Gloria Rebecca Gomez, Arizona Mirror
May 24, 2023
Less than a dozen trans students in the entire state have asked to play on girl’s sports teams’ in the past decade, but Republican Superintendent Tom Horne said that girls across the state are facing unfair competition, which is why he is vehemently defending Arizona’s trans athlete ban.
“Imagine if Dennis Rodman, who likes to dress as a woman, announced that he’s transgendered and would compete in the Women’s National Basketball Association, or if Floyd Mayweather said he’s transgender and will now compete in women’s boxing,” Horne said at a Wednesday morning news conference announcing his backing of the ban in court. “They would dominate every competition and cause serious injuries. Progress in women’s sports would be wiped out.”
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Horne is currently the sole defendant in a lawsuit filed last month by two Arizona girls seeking to void a 2022 law that bars them from playing on teams consistent with their gender identity. The girls’ schools, a Tucson private school and Phoenix area public school, have expressed support for the two, and Attorney General Kris Mayes has refused to defend the law.
GOP leaders in the legislature have petitioned the judge to grant them permission to defend the law they helped pass, but they have yet to gain it.
At the heart of the issue, Horne said, is the rights of girls to have an equal chance at success in their athletic endeavors.
“It’s a matter of fairness,” he said. “Every person has to be treated with the same dignity and the same respect regardless of race, sexual orientation or anything else. That’s a fundamental human value. It’s not fair for biological boys to compete against girls, even if they say they’re girls or even if they have (puberty) blockers.”
An interest in defending women’s access was repeatedly asserted by lawmakers who approved the ban last year, and has been at the center of efforts to shut out trans girls from competitive sports across the country at the federal level. But that argument ignores the reality that trans athletes are an extreme minority.
In Arizona, only 16 trans students were allowed to join a public school sports team consistent with their gender identity from 2017 through 2022, when the ban was passed. And while exact data on gender wasn’t collected, the appeals were about evenly divided between boys and girls, according to Seth Polansky, a spokesperson for the Arizona Interscholastic Association, which oversees athletic programs for roughly 170,000 students across the state.
Horne told the Mirror in a May 5 interview that even that small number heralds a detrimental influx in the future.
“It’s a start, and if allowed to grow, it’s going to badly hurt girls’ sports,” he said earlier this month.
Horne said he supports LGBTQ students — but he draws the line at their involvement in sports.
“I feel a very deep sympathy for people who feel they were born in the wrong body, but I also believe that biological men should not compete against females,” he said, after casting himself as a proponent of LGBTQ rights for his voting track record during his time as a legislator.
Rep. David Cook, a Globe Republican who showed up at the media event in support of Horne’s legal efforts, defended the law — which he voted for — against criticism as a balancing act. LGBTQ students, like all Arizonans, aren’t always going to get what they want, he said.
“Life is not fair, nothing in life is fair,” he said. “We’re all not going to be successful, we’re all not going to have the same opportunities. And what that means is that you might be faced with a little bit of disappointment.”
For Shawna Glazier, a competitive cyclist once defeated by a trans woman, keeping a level playing field for women at all levels is imperative.
“It is degrading to be forced to race with them, knowing that the biological differences between males and females puts us at a significant disadvantage,” she said.
In their lawsuit, 11-year-old Jane Doe and 15-year-old Megan Roe argued that the 2022 sports ban violated various federal protections. (Both girls are using pseudonyms for their own protection.) The alleged violations included the equal protections guaranteed by the Fourteenth Amendment and Title IX, which prohibits schools that receive federal funding from discriminating against students based on sex or gender identity.
Horne, in the latest legal filing, rebuts that neither argument is valid. Title IX, his attorneys note, allows schools to separate students based on sex if the teams are competitive or include physical contact. The rule was designed, his attorneys wrote, to give girls and women equal access to sports.
“Title IX permits such sex-separated teams for the very purpose of promoting sex equality, because sex-related physical differences (affect) the fairness of sports competition and it is understood that girls would generally have a competitive disadvantage,” reads the brief.
The girls’ rights to equal protection aren’t being violated either, Horne added. Instead of singling them out because of their gender identity, the 2022 law treats all students the same, using biological sex as a benchmark to separate students into teams.
“Biological boys are to be treated the same as biological girls in being able to participate in their relative sports teams based on their sex,” write attorneys. “The (law) allows them to be similarly situated to others of the same sex.”
Currently, trans boys are allowed to play on boys teams, and the appeal process that was once open to both trans boys and girls is still available for them. Horne in his filing reasons that this exception is validated because trans boys made the choice to compete against other athletes who may prove stronger than them, but biological girls don’t have a say in whether they want to compete against athletes who were born males.
Jane and Megan noted that their physical abilities are more in line with those of their female peers, because the former has yet to undergo puberty and the latter student has been taking puberty blockers and hormone therapy for several years.
But Horne cited studies that claim even prepubescent children show differences in athletic ability, and added that even if a few trans students don’t show a significant advantage, the court must factor in biological males as a whole. If biological males on average outperform biological females, then it’s unfair to allow trans girls to join teams consistent with their gender identity, attorneys for Horne argue.
“It does not matter that any particular students — including Plaintiffs — might not have yet gone through puberty,” reads the brief. “Making reasonable distinctions based on biological sex is at least substantially related to fairness and safety in sports.”
In the end, Horne’s attorneys said, the rights of Jane and Megan are not being infringed upon because they are still able to join the boys team, or request that a co-ed, non-competitive team be formed. Striking down the law, they warn, would open up the door for boys across the state who wish to succeed athletically to claim they are trans and obtain medication — a lengthy process that includes doctor consultations and counseling sessions — simply to compete on girls’ teams.
An effort at the federal level to protect trans athletes also elicited pushback from Horne. In April, the Biden administration unveiled plans to expand Title IX to definitively bar federally funded schools from restricting trans students’ athletic participation solely because of their gender identity. The rule change was made in response to trans sports bans in nearly two dozen states, including Arizona.
In a public comment, Horne protested the rule’s expansion, claiming that it would “decimate” girls’ sports.
“The whole reason we divide boys’ from girls’ sports is because of the male advantage in muscle mass and bone structure,” Horne wrote in a public comment to protest the rule change. “Making girls compete against that is a major injustice.”
Jeanne Woodbury, a lobbyist for Equality Arizona, an LGBTQ advocacy group, dismissed that argument as flawed. A rule change that fosters inclusivity would lead to greater fairness and equality, not less, she said.
“Trans-inclusive athletics policies have the same intent as Title IX,” she said in an emailed statement. “(They) recognize that gendered differences aren’t binary, and are designed to allow for greater fairness in school sports.”
Rachel Berg, an attorney with the National Center for Lesbian Rights which is representing Jane and Megan, criticized the inaccurate conflation of a person’s transgender status with their physical capabilities.
“Just because a girl is transgender does not tell you anything about her athletic ability,” she said.
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