A federal appeals court on Monday ruled in favor of two prepubescent transgender female athletes seeking to play girls’ sports in school, agreeing with a lower court that there are no significant athletic differences between boys and girls before puberty.
The three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld an injunction that partially blocks an Arizona law barring transgender women and girls from college and school sports.
The injunction applies only to the two challengers as the case is litigated. One is identified in court papers as Jane Doe, an 11-year-old transgender girl who takes a puberty blocker and seeks to play on her middle school’s girls soccer and basketball teams as well as the coed cross-country team. The other is identified as Megan Roe, a 15-year-old who has taken puberty blockers for four years and seeks to play on her private high school’s girls volleyball team.
In Doe v. Horne, the 9th Circuit panel noted “that standards governing transgender participation in sports are evolving” but that the district court had found based on expert testimony that the “biological driver of average group differences in athletic performance between adolescent boys and girls is the difference in their respective levels of testosterone, which only begin to diverge significantly after the onset of puberty.”
Thus, the lower court found that transgender girls such as Doe and Roe, who begin puberty-blocking medication and hormone therapy at an early age, “do not have an athletic advantage over other girls.”
The district court’s findings were “firmly grounded in evidence,” and the judge “did not clearly err by finding that there are no significant differences in athletic performance between prepubescent boys and girls,” Judge Morgan Christen, an appointee of President Barack Obama, wrote for the panel.
(The other members of the panel were Senior Circuit Judge M. Margaret McKeown, an appointee of President Bill Clinton, and Senior District Judge David A. Ezra, an appointee of President Ronald Reagan.)
Appeals court backs injunction on basis of equal protection
At issue in the case is Arizona’s Save Women’s Sports Act, passed in 2022 and similar to numerous measures in other states. The law bars male and transgender female students from participating in women’s and girls’ sports, though state law had already barred men and boys from such participation.
The law was challenged by Doe and Roe and their parents under the 14th Amendment’s equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.
The district court granted the injunction blocking the Arizona law with respect to the two challengers based on both equal protection and Title IX. The 9th Circuit upheld the injunction based only on the equal protection clause.
The appeals court said the state law does not afford transgender women and girls equal athletic opportunities because it permits cisgender women and girls to play on any teams, male or female, while transgender women and girls may play only on male teams. The law also permits all students other than transgender women and girls to play on teams consistent with their gender identities, the court said.
“Transgender women and girls alone are barred from doing so,” Christen said. “This is the essence of discrimination.”
Although the court did not rule on Title IX, it suggested the state defendants might have justifiable arguments on their claim that the state lacked clear notice from Congress that excluding transgender women and girls from female sports violates the statute. The defendants can press that argument as the full litigation over the state law proceeds, the court said.
The court also emphasized that its decision did not bar policymakers from adopting “appropriate regulations in this field.”
“States have important interests in inclusion, nondiscrimination, competitive fairness, student safety, and completing the still unfinished and important job of ensuring equal athletic opportunities for women and girls, who must have an equal opportunity not only to participate in sports but also to compete and win,” Christen said.
