By GARRY RAYNO, InDepthNH.org

CONCORD — A federal district court judge Tuesday issued a preliminary injunction allowing two transgender high school girls to participate on girls athletic teams.

US District Court Judge Landya McCafferty’s ruling will allow Parker Tirrell, 15, to continue to play soccer on Plymouth Regional High School’s girls’ soccer team and Iris Turmelle, 14, to try out for winter girls’ sports teams at Pembroke Academy.

The federal judge had earlier issued an emergency order allowing the two transgender females to participate in girls’ athletics at public schools, something prohibited by House Bill 1205 recently signed into law, which allows only born biological females to participate in girls athletics.

“There is no indication in the record that (the girls’) participation in school sports has caused the state or anyone else the slightest modicum of harm,” McCafferty wrote in her decision.

The preliminary injunction, which is issued when the plaintiffs are likely to win on the merits of the case, applies only to the two transgender females whose families filed the complaint after Tirrell was told she could no longer practice with her team after Gov. Chris Sununu signed HB 1205 into law in July.

McCafferty, noted that both students had been living as females while being treated for gender dysphoria and Tirrell had been competing on girls athletic teams without causing the state or anyone else harm.

The federal judge also found blocking their participation would cause them irreparable harm.

“HB 1205 would bar Parker from playing on her high school soccer team — her primary source of social and emotional support and acceptance. It would also bar Iris from trying out for girls sports, which she and her parents hope will allow her to make friends and feel accepted after being bullied in middle school” McCafferty writes. “By treating Parker and Iris in this way, HB 1205 would be ‘very publicly branding (them) with a scarlet T.’”

The Attorney General’s Office, which argued the case for the state and Education Commissioner Frank Edelblut, the State Board of Education, and the two school districts, which did not take a position on the case, said it is reviewing the ruling.

“We are currently reviewing the court’s decision and are in the process of evaluating the implications of the ruling. We remain dedicated to providing a safe environment for all students,” said Michael S. Garrity, Director of Communications and Legislative Affairs for the Attorney General’s office. “The State will continue to consider all legal avenues to ensure that we uphold both the law and our commitment to student welfare.”

The state had argued the state should not have to defend the law using “strict scrutiny” which puts the burden on the state to prove the law is drawn as narrowly as possible to serve a compelling state interest.

The complaint was filed by the transgender girls’ parents charging violations under the Constitution’s 14th Amendment requiring equal protection under the law and Title IX of the Education Amendment.

Past federal court decisions have indicated that discrimination against homosexual and transgender individuals is discrimination based on sex and requires the highest strict scrutiny standard, she noted in her decision.

McCafferty found the state’s arguments were “not even a close call,” as the law discriminates against only transgender girls and does not mention transgender boys, much less bar them from boys’ athletic teams.

“The State defendants contend that HB 1205 does not contain a facial classification based on transgender status because the law uses biological sex to determine eligibility for participation in girls’ sports, not transgender status, and because ‘transgender status is not mentioned anywhere in’ the Act,” the order states. “Courts have easily seen through this argument.”

During the legislative sessions, proponents of the bill said it would protect biological females from injury and harm, while preserving competition among biological females.

Judge McCafferty quotes several legislators speaking from the House floor on the bill saying its purpose was to make a distinction between biological and transgender females.

“In short, the legislative history of HB 1205 confirms what is apparent on its face: the Act intentionally targets transgender girls and subjects them to differing treatment solely because they are transgender,” the judge writes.

She said the state presented no evidence transgender girls’ participation in girls’ sports in New Hampshire has created a safety problem or jeopardized the integrity of girls’ athletic competitions.

The state has not provided any evidence transgender girls have an inherent advantage over cisgender girls in athletic competition merely from being born male, the judge notes, and no evidence the participation of Parker and Iris in girls sports is related to fairness or safety.

At this stage of the case, McCafferty writes the state has not demonstrated that HB 1205 is substantially related to achieving an important governmental interest, and the plaintiffs are likely to win on the merits of their claims.

The plaintiffs did not ask the court to block the law for any other transgender girls seeking to participate in girls’ sports in the grades covered in the new law — grades 5 to 12 in public schools — nor did they ask for a monetary settlement.

A trial on the merits of the case is possible this fall before the beginning of winter sports.

Similar bills have passed in other states controlled by Republicans as have bills restricting medical treatments to help transition minors away from their biological sex and some have blocked transgender individuals from using bathrooms designated for their gender.

About five years ago the legislature passed and Sununu signed a bill that would have prevented discrimination against transgender students participating on sports teams designated for their gender.

Garry Rayno may be reached at garry.rayno@yahoo.com.