Judge Keith A. Kelly on Friday granted a preliminary injunction sought by the families of three transgender girls, allowing them to seek permission to play girls sports this school year.
The preliminary injunction stops the enforcement of Section 9 of HB11, a 2022 bill banning biological boys from participating in high school girls sports, while the court considers the families' lawsuit. It leaves the rest of the bill in effect, meaning that transgender girls can seek permission from a commission to play on girls high school sports teams.
In a written order issued Friday, the 3rd District Court judge said he carefully considered the issue. He explained the preliminary injunction allows transgender girls to compete on girls teams "only when it is fair" — something determined by a commission created by the Utah Legislature as outlined in Section 10 of HB11.
“The effect of this preliminary injunction will not mean that transgender girls will automatically be eligible to compete on their school’s girls teams. Rather, it will allow them to compete only open the commission’s determination that their being able to compete is fair under all of the circumstances,” Kelly’s order says.
The order notes that Utah laws allow transgender minors to legally change their gender and that those involved in this lawsuit are undergoing medical gender transition treatments. In a hearing on the preliminary injunction request last week, Kelly said as a judge he regularly approves requests from people who come before him to legally change their gender.
Kelly said the Utah Supreme Court has explained that injunctions shouldn’t be granted lightly, but the criteria in this case has been met.
The judge said the threatened injury to the transgender girls and their families from the ban outweighs any damage an injunction would cause to the state and school districts, and the injunction does not contradict public interest.
Kelly determined that the families have shown they are likely to succeed in proving, through the lawsuit, that Section 9 of HB11 violates Utah’s Constitution, specifically the uniform operation of laws clause, another requirement for granting an injunction. The order said it “treats transgender girls less favorably than other girls.”
The decision said HB11 creates a sex-based classification by basing a student’s sex on their genetics and anatomy at birth for the purposes of school sports, singling out transgender girls.
“Statutes must be read in their entirety, and the ban, read as a whole, makes clear that its overriding purpose is to regulate transgender girls’ participation on school sports teams,” Kelly’s order states.
Because HB11 discriminates based on sex, Kelly said the courts must use a heightened scrutiny analysis, and that the transgender sports ban does not withstand a heightened scrutiny test, which would require it to be “reasonably necessary” to reach a legislative purpose and actually further that purpose or goal.
“Proponents of the ban claimed that it is necessary to protect girls’ sports. But unlike the reasons for providing separate teams for boys and girls, which courts generally have found to withstand constitutional scrutiny, the (state and school districts) do not offer persuasive reasons to categorically ban all transgender girls from competing on girls teams,” the decision says.
Kelly determined excluding transgender girls from girls teams does not promote equal athletic opportunity between boys and girls, and would not be the least restrictive way to reach the Legislature’s goal.
The families and their lawyers gave the court evidence showing that treating gender dysphoria includes allowing transgender youth to live with their gender identity in each aspect of their lives.
The judge agreed with the families’ attorney, Shannon Minter, legal director of the National Center for Lesbian Rights, who argued last week that the three transgender girls have already shown they have faced harm from the ban. Minter said the girls would have serious and immediate consequences in their lives if the injunction wasn’t granted.
The transgender girls are known in the lawsuit by Jenny Roe, Jane Noe and Jill Poe. Jenny Roe is 16 and previously participated on her school’s girls volleyball team, and hopes to play on the team again this year. Roe has been taking puberty blockers since she was 13, and the order says she fears the ban would undo progress she has made toward being supported at school and would harm her ability to follow medically prescribed gender dysphoria treatment and live as a girl.
Jane Noe is 13 and has lived as a girl since third grade and has been competing on girls swim teams. She hopes to compete with her high school’s girls swim team in 2023 and has been taking puberty blockers. Noe’s parents have said that she will not want to attend school in person if she cannot swim on the girls swim team.
“Jane (Noe) has already been harmed by the public discussions around the ban. She will not watch any news coverage related to the legislation, and it is painful for her to know that others do not think of her as a girl,” the order said.
Jill Poe is 14 and recently started taking puberty blocking medication. Her family has said that treatment for gender dysphoria since she told her family she was transgender in late 2021 has helped her be happier and less withdrawn. Poe wants to compete in cross-country and track and has said running on the boys team would undo progress and cause pain and humiliation.
What’s next?
In a hearing scheduled for Tuesday, attorneys in the case will talk about what will be allowed in the discovery process for the case and could set dates for a trial, something the judge encouraged doing soon in last week’s hearing because of the court’s busy calendar and the urgency for this case.
Utah’s Republican senators responded to the injunction and said now the seven-member School Activity Eligibility Commission will go into effect, and will begin to determine transgender participation in school sports.
“Utah had the foresight to create a first-of-its-kind solution, a data-driven commission that will help ensure female athletes can continue to compete in a fair environment,” said Senate President Stuart Adams in a statement. “With the commission, we are aiming to protect equitable and safe competition while preserving the integrity of women’s sports. The commission will be constituted in the coming weeks.”
The commission will include a physician with expertise in gender identity, a sports physiologist, a mental health professional, an athletic trainer, a representative from an athletic association, a medical data statistician and a rotating member who is a coach or official in the sport being discussed in each case.
Sen. Curt Bramble, R-Provo, who sponsored the bill, said it is important to protect women’s sports and uphold Title IX, and the commission will make this possible to do while making decisions on a case-by-case basis.
“Though some may disagree with this approach, it is the best path forward to protect female sports while considering the needs of all students,” Bramble said.
Rep. Kera Birkeland, sponsor of the bill in the House, said the intention was to protect girls sports, and that female athletes can still compete fairly with the commission.
“For every girl who is feeling unseen or unheard right now — I hear you. Be proud of the body you were given and its abilities. You are fierce and amazing just as you are,” Birkeland said.