SALT LAKE CITY — A judge heard arguments on Thursday on whether to block Utah's law banning transgender girls from competing in school sports that match their gender identity.
Third District Court Judge Keith Kelly said he would not issue an immediate ruling on a request for a preliminary injunction. Lawyers spent much of the day on Thursday arguing for and against it.
Three transgender girls and their families are suing Utah’s High School Activities Association and the Jordan and Granite school districts over the new law. They allege it is discriminatory and unconstitutional. In court, attorneys for the children argued about the impact of the law including declining grades, social stigmas and exclusion.
"We have that directly from the girls and their families. All three of the girls, the biggest immediate impact of the ban, the one that is happening to them right now is they cannot compete on girls teams. Not now. Not ever," said Shannon Minter, one of their attorneys. "That has completely changed their lives."
Minter described each of the girls and the impact the ban has had on their individual lives. The children and their families watched the hearing via a video feed in a separate courtroom because the judge has a confidentiality order in place to protect their identities. He has said in court filings the children face harassment and attacks because they are transgender.
But lawyers for the UHSAA and the districts argued the plaintiffs were asking to create a new class and a new constitutional right, overriding the legislative branch of government.
"The plaintiffs are asking the Court to establish a new constitutional right, overriding a super-majoritarian decision, a policy making decision by their representatives in the legislature," said Tom Lee, a retired Utah Supreme Court justice representing the state and the Utah Attorney General's Office.
The Utah State Legislature earlier this year passed House Bill 11, which set a framework for transgender children to play school sports that match with their gender identity. LGBTQ rights groups and Governor Spencer Cox were negotiating it, which originally involved a special commission to determine eligibility. But it was amended in the final hours of the 2022 legislative session to include an all-out ban. Gov. Cox vetoed the bill. The legislature later met in special session to override him.
In court documents, attorneys have said the law only affects four children who identify as transgender out of 75,000 student athletes statewide.
Lee said the legislature was protecting women with the bill and there was still some accommodation under the law, even if it was not what the plaintiffs would prefer.
"Sometimes the principle of equality recognizes a salient differences between the sexes," Lee told the judge.
A preliminary injunction blocks the law from being enforced. The children are seeking it as they prepare to go back to school in the fall and would like to play sports. If the judge blocks the ban, there is a trigger mechanism in the bill that creates the commission to evaluate a transgender child’s eligibility to play school sports.
The plaintiffs are not challenging that part of the law, just the ban.
Minter urged the judge to go back to what was school policy before the law was passed — where transgender girls who wanted to play sports consistent with their gender identity were subject to criteria to determine their eligibility.
"The relief these girls are seeking is the opportunity to be evaluated without being subject to a categorical ban," he said.
On Wednesday, Judge Kelly declined a request by lawyers representing the state to dismiss the lawsuit. He discussed setting a trial date, which may not happen until 2023.
