By Howard Fischer
Mail | X: @azcapmedia

The top Republicans in the Arizona Legislature can’t escape having to answer questions about their motives in promoting and voting in 2022 to ban transgender girls from participating in girls’ sports.

Without comment, U.S. Supreme Court Justice Elena Kagan, who is the duty justice for this area of the country, rebuffed claims by Senate President Warren Petersen and House Speaker Ben Toma that all of this is protected by legislative privilege and forcing them to submit to deposition by attorneys for those challenging the law would result in irreparable harm.

While Kagan did not explain her decision, it falls in line with lower court rulings the pair, having voluntarily made themselves parties to the case to defend the law — only state schools chief Tom Horne was initially sued — cannot now shield themselves from questioning.

The new ruling from the nation’s highest court leaves the pair with no choice but to answer the questions. Prior efforts to escape were rebuffed, first by a trial judge and, more recently, by the 9th Circuit Court of Appeals.

The ruling is a clear victory for the parents of transgender girls who challenged the law — and, for the moment, have been allowed to participate while the case makes its way through the legal system.
That’s because they are arguing the statute violates the Equal Protection Clause of the U.S. Constitution. One element of such claims is whether legislators “acted with discriminatory intent.”

What the order means is not just that they have to answer questions about their own reasons for supporting the legislation but that they also have to surrender documents in their possession about the enactment of the law — including one that the trial judge has “talking points” about the statute.
Petersen was clearly miffed at the decision.

“Do you think we should be able to be deposed for eight hours on every bill we vote on?” the Gilbert Republican asked.

That, however, ignores the fact the ruling that he and Peoria Republican Toma answer the questions was based not on the fact they approved the law but on the fact that they sought to become parties to the lawsuit to defend it.

But, even with the new ruling, Petersen said interceding in the pending case was “not a mistake.”

There was no immediate response from Toma.

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. It specifically says teams designated for women or girls “may not be open to students of the male sex.”

Proponents said males have an inherent biological advantage.

The parents of two transgender girls filed suit against Horne. 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 U.S. District Court Judge Jennifer Zipps gave the go-ahead for these transgender girls — and, for the moment, 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 is just a preliminary injunction. Now the case is set to determine whether to make that order permanent. That’s where the questioning of Toma and Petersen becomes relevant.

Attorney General Kris Mayes, whose office normally represents the Department of Education, declined to defend the law, telling Capitol Media Services it was clear her views on defending the lawsuit did not align with those Horne. But she did allow him to hire his own attorney.

But Toma and Petersen insisted in joining the lawsuit to defend the law, insisting in a legal filing that the failure of Mayes to defend the constitutionality of the law means “the existing parties do not adequately represent the legislative leaders’ interests.”

“If the Speaker and President are not allowed to intervene, they will not be able to exercise their statutory right to mount a defense, and the duly enacted laws challenged here may receive no adequate defense, or even no defense at all,” said their attorney hired at public expense. He said the pair have “unique legislative interests” in defending the validity of the law, interests that may differ from those of Horne.

Zipps approved. But that became a double-edge sword.

The judge acknowledged lawmakers generally are shielded from having to provide evidence in challenges to state law. But having asked to become parties, she said, they “waived their legislative privilege by voluntarily participating in this lawsuit and putting their intent at issue.”

In fact, 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 their answers — and the document they have — important 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,” Zipps concluded, putting the burden on the state to justify the law.

Zipps did agree to let the attorney for Toma and Petersen question the transgender girls who brought the lawsuit, but she prohibited him 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.

No date for a trial has been set.

Approval of the 2022 law came despite the fact 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.

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.”