By Howard Fischer
Mail | X: @azcapmedia

PHOENIX - The state's top two Republican lawmakers have been ordered to answer questions, under oath, about why they voted to ban transgender girls from participating in girls' sports.

And they're also going to have to turn over emails, including one with "talking points'' about the law.

In a new ruling, U.S. District Court Judge Jennifer Zipps acknowledged that lawmakers are generally shielded from having to provide evidence in challenges to state laws.

But the judge pointed out that House Speaker Ben Toma of Peoria and Senate President Warren Petersen of Gilbert asked to become parties to the legislation. What that means, she said, is they "waived their legislative privilege by voluntarily participating in this lawsuit and putting their intent at issue.''

What makes that legally significant is that challengers to the 2022 law contend it violates the Equal Protection Clause of the U.S. Constitution. And that, Zipps said, makes the motives of state lawmakers legally relevant to what she will decide about the legality of the law.

Toma and Petersen responded by asking a federal appeals court to overturn the judge's order.

The statute, dubbed the Save Women's Sports Act, requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And it specifically says that teams designated for women or girls "may not be open to students of the male sex.''

Proponents said that males have an inherent biological advantage.

Approval came even though the Arizona Interscholastic Association, which governs high school sports, already had protocols to handle requests by transgender athletes to participate in sports on a case-by-case basis. Factors included a student's "gender story,'' including the age at which they became aware of the "incongruence'' between the sex assigned at birth and gender identity, and whether the student is undergoing gender transition.

And Dr. Kristina Wilson, who was on the AIA's medical advisory board, testified that out of 170,000 high school athletes there had been just 16 requests by transgender individuals to compete.

None of that convinced then-Gov. Doug Ducey who, in signing the measure, lashed out at the organization for even allowing any transgender youth to participate.

"It's a shame that the AIA and the NCAA (which governs college sports) won't speak out on these,'' he said. "So, we did in Arizona.''

The parents of two transgender girls filed suit.

One was set to attend Kyrene Aprende Middle School and wanted to try out for girls’ soccer and other teams. Her lawyers said the student has “lived her life as a girl” since age 5.

The other is a student attending The Gregory School, a private school in Tucson, who was 15 when the lawsuit was filed. The lawyers said that student has been on puberty-blocking medication since age 11.

Last year, Zipps gave the go-ahead for these transgender girls - and only those girls - to participate in girls’ sports, ruling the state law precluding that violates Title IX, the federal statute that bars discrimination based on sex in educational opportunities.

That, however, is just a preliminary injunction

Now the case is set to determine whether to make that order permanent. And that's where the questioning of Toma and Petersen becomes relevant.

Attorney General Kris Mayes declined to defend the law, telling Capitol Media Services that it was clear her views on defending the lawsuit did not align with those of state schools chief Tom Horne who is named as a defendant in the case. But she did allow Horne to hire his own attorney.

In his own filings, he contends the 2022 statute both protects biological girls from unfair competition and ensures they are not injured by those who are stronger and more powerful. And Horne dismissed as unfounded the contention that these two girls have no advantage because they are either prepubescent or are taking puberty blockers.

Horne also said even if that is true - a point he is not conceding - the girls have a legal remedy far short of being allowed to compete in sports designated for girls only.

"They can also seek an order requiring a co-ed team if this court ultimately finds that pre-puberty males have no advantage,'' wrote Dennis Wilenchik, one of the private attorneys hired by Horne

But Toma and Petersen decided they wanted their own voice in the case, hiring an attorney at taxpayer expense to argue they have "unique legislative interests'' in defending the validity of the law, interests that may differ from those of Horne.

In a statement at the time, Petersen said the "science is clear that male athletes have many inherent physical advantages over females'' including greater size, stronger muscles and larger bone structure.

"By allowing males to compete against females, we're essentially subjecting young girls to greater risk of injury, as well as stripping them of athletic opportunities their female predecessor have long fought for.''

Zipps used that claim of "unique legislative interests'' to conclude Toma and Petersen have opened themselves to being questioned.

"(They) put their legislative intent at issue in their assertions that (1) the law does not discriminate on the basis of transgender status, and (2) the purpose of the law is to 'redress past discrimination against women in athletics' and 'promote equity of athletic opportunity between the sexes' in school sports,'' the judge wrote.

What makes that important, she said, is the nature of the lawsuit.

"In this Equal Protection challenge, the government must establish that its sex-based classification is substantially related to an important government objective,'' the judge concluded, putting the burden on the state to justify the law.

She acknowledged that children are "assigned'' a sex at birth that generally matches physiology. But the judge said that is different than "gender identity.''

The judge already has ruled that Title IX - the federal law that prohibits discrimination based on sex in education opportunities - also applies to transgender girls, those who were born male.

So that makes this a claim of unconstitutional discrimination, and Zipps said that, in turn, means Toma and Petersen must answer questions about their motives and turn over emails to determine whether they "acted with discriminatory intent'' in passing the law.

"This discovery may shed light on whether the Arizona Legislature acted with a constitutionally permissible purpose in enacting the law,'' the judge said.

Her ruling was not a complete victory for the challengers: Zipps also agreed to let the attorney for Toma and Petersen question the transgender girls who brought the lawsuit.

But she prohibited them from asking about the legitimacy or appropriateness of their medical or mental health treatment. Also off limits are questions referencing sexual abuse, assault or misconduct.

A trial will not take place before the end of the year.