By PAULA TRACY, InDepthNH.org
CONCORD – A recently signed law that restricts transgender girls from playing public school sports is being challenged in U.S. District Court, as two students return to school for the fall who argue it violates their Constitutional rights.
That question, posed by the passage of House Bill 1205, https://www.gencourt.state.nh.us/bill_status/billinfo.aspx?id=1501&inflect=2 and signed by Republican Gov. Chris Sununu, is under consideration by United States District Judge Landya McCafferty for the District of New Hampshire.
On Tuesday, the judge extended an Aug. 22 temporary restraining order for two weeks to the Pemi Baker Regional School District in Plymouth to allow a sophomore there, Parker Tirrell, to practice and be on the girls’ soccer team while she decides on whether to issue further and more broad action and perhaps a bench trial this fall.
Plymouth girls JV and Varsity soccer play Merrimack Valley Regional High School in its first game Aug. 30 and have been practicing for a week. School began there on Monday.
McCafferty found that Tirrell would likely prevail on the merits of her claim that to be excluded would cause irreparable harm to continue to participate in the sport, among other claims and that both she and fellow plaintiff, Iris Turmelle, another high school trans girl had taken puberty blockers which did not give them a competitive athletic advantage and that there is no advantage.
But the new law does not exclude those who have taken such puberty blockers.
Attorneys for the schools have not taken a position for or against the action but one lawyer said Tuesday that the matter puts the districts in a “tough situation” without disposition by needing to honor the federal law under Title IX but also follow direction from the state Department of Education which has now issued directives to keep trans girls from playing on girls team sports.
Some critics say there are only a few transgender girls in the state who would be eligible and restricted, and this is part of a national conservative effort to block what some consider an unfair advantage.
Attorneys for Tirrell and Iris Turmelle, who wants to be on the Pembroke track team this winter, argue that the new law violates their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972.
But attorneys for the state claim that the law is intended to protect girls on their sports teams from transgender youth, who could be more strong and powerful, injuring them and out-competing them for scholarships and placement on the teams.
Attorney General John Formella said in a news release: “We appreciate the Court taking time to hear all of the arguments presented today. The Court extended the TRO for 14 days while the judge considers her decision. We remain committed to vigorously defending this new law and will determine next steps once the Court issues its order.”
House Bill 1205, which was hotly debated in hearings and on the floor of both chambers, passed the House on a narrow vote of 189-182 on March 21 and a vote of 13-10 in the Senate on May 16.
Sponsored by state Rep. Louise Andrus, R-Salisbury, the bill states that only those whose birth certificate shows they are female can be allowed to compete on public school girls sports teams in grades 5-12 and requires all girls to show a birth certificate.
But it provides for “other evidence” which is unspecified, to be eligible to show gender to play.
Opponents say that could include genital inspections, while supporters say that is not the case.
Supporters claimed that allowing biological males to participate in women’s athletics is not physically fair competition and could be dangerous for female athletes.
But opponents, including the state’s largest teachers union, said it excludes students from athletics, which can help foster a sense of belonging that is critical to thrive. And some worry that those who face “gender dysphoria” are already marginalized and more prone to suicide.
Trans rights groups assert that by singling out this very small population, they victimize and stigmatize trans girls that could be permanently damaging to their esteem and ability to thrive and they said it is backed up by doctors who direct them to live as girls.
But some doctors disagree.
After signing the bill, Sununu issued a statement noting that in 2018, Republicans and Democrats passed legislation to prevent gender discrimination “because as I said at the time, it is unacceptable and runs contrary to New Hampshire’s Live Free or Die Spirit. That still rings true today. “
Sununu said “charged political statements have muddled the conversation and distracted from the two primary factors that any parent must consider: safety and fairness for their children. These two factors have been my primary consideration in reviewing these bills.”
He said HB 1205 ensures fairness and safety in women’s sports by maintaining integrity and competitive balance in athletic competitions.
“With this widely supported step, New Hampshire joins nearly half of all U.S. States are taking this measure,” he said.
The governor called it a solution that reflects the values of parents across our state.
“The vast majority of Granite Staters share this approach – because it is fair, balanced, and void of political considerations. By enacting these measures, we continue to uphold the principles of safety, fairness, and common sense for all our citizens,” Sununu said.
The law went into effect on Aug. 18 and a number of groups, including GLAD Legal Advocates & Defenders for the LGBTQ community and the American Civil Liberties Union New Hampshire chapter, which both testified against the bill, filed suit against the state, hours before soccer practice began at PRHS.
The family of Parker Tirrell said they received notification from the school district that Parker could not begin practice pursuant to the new law, but in court has taken no position on the matter.
Judge McCafferty was asked for a temporary restraining order to allow Tirrell to begin practice, which she did on Aug. 22 which enjoined the school from prohibiting her from practice.
The narrow TRO is only for Tirrell. The other plaintiff, Iris Turmelle, will not need such intervention until track practice begins Dec. 2, McCafferty was told.
Chris Erchull, senior staff attorney for GLAD, urged McCafferty to rule quickly on the preliminary injunction which he said he hopes will be in a matter of days.
He argued irreparable harm could come to Iris Turmelle when she goes back to school next week and offered additional facts to support injury if she is told she cannot participate in sports.
Michael DeGrandis, attorney for the state, said the plaintiffs have not said why they could not be accommodated by playing on other teams from coed teams to unified sports teams and he said that it is the state that is being harmed.
He said he was not sure whether the state would be prepared with expert witnesses for an expedited trial this fall, if one is held, but Erchull said the plaintiffs are ready to go when and if the court asks.
Both girls and their families attended the two-hour hearing Tuesday morning and outside with their attorney Erchull said he feels the judge understands what is at stake and will move expeditiously.
“We’re seeking a declaration, ultimately from this court, that this law is unconstitutional,” Erchull said. “It could apply more broadly,” to others and he noted he requested that of the judge.
“What I know is that school districts are in fact between a rock and hard place because they understand that students, including transgender students, have rights that are protected by Title IX and they also understand that there is a new state law that they are bound to enforce…And I think that is a really difficult position for school districts to be in,” Erchull said.
“As soon as Iris walks into school next week she is going to be suffering harm because of the way this law impacts her. She has no guarantees she will be able to participate in school sports this year, and in fact, she has been told the opposite by the state and her school district. And so, she is going to be walking into school next week…on different terms from other students and that is going to affect how she integrates with the school community. And I think that is a very real harm that happens right away. That said, I am confident that the court is going to reach the merits of the motion for a preliminary injunction for the sports that Iris intends to play,” Erchull said.
