A federal judge is allowing transgender teenager Parker Tirrell to continue playing soccer at her New Hampshire high school for two weeks. The teenager is now considering taking broader action against a new state law that bans transgender girls from participating in girls’ sports.
After a hearing on Tuesday, Judge Landya McCaffery of the U.S. District Court for New Hampshire extended her August 19 order by two weeks, temporarily blocking the application of the law against Tirrell, who wanted to attend her soccer team’s practices and games.
McCaffery announced that she would make a decision in the coming weeks on whether to grant a longer stay – a stay that would take effect while the case is being heard.
The law, House Bill 1205, requires schools to divide all sports teams in grades 5 through 12 into “male, male or boys,” “female, female or girls,” and “mixed,” and prohibits students from participating on girls’ teams unless they were biologically born female. The law requires “female” athletes — and only “female” athletes — to provide birth certificates proving their sex at birth, and exposes school districts to private lawsuits if they don’t comply.
Tirrell, of Plymouth, is suing the state along with Iris Turmelle, of Pembroke. The two are represented by GLBTQ Legal Advocates & Defenders (GLAD) and the American Civil Liberties Union of New Hampshire.
A Title IX argument
The plaintiffs claim the new state law violates Title IX, a federal law that requires gender parity in public schools, and the equal protection principle of the 14th Amendment. The defendants, which include the Department of Education and the Attorney General’s Office, say the law was validly passed in the interest of ensuring equity and safety and should not be repealed.
The parties first met on Aug. 19, when the plaintiffs sought and received a temporary restraining order to allow Tirrell to attend football practice that evening. On Tuesday, McCafferty heard from both parties on whether she should issue a temporary restraining order against the law, which would put the case on hold pending a trial to test the merits of the lawsuit in the coming months or a year.
Chris Erchull, an attorney for GLAD, argued in court that Title IX prohibits states and school districts from discriminating “on the basis of sex,” and that a law banning transgender students from participating on sports teams of their gender identity meets the definition of such discrimination.
“Because the policy intends to discriminate on the basis of transgender status, it necessarily intends to discriminate on the basis of sex,” he said.
Michael DeGrandis, a lawyer for the attorney general’s office, countered that lawmakers had a legitimate reason for passing the law. He said Title IX, passed in 1972, is aimed at both men and women and does not apply to transgender cases.
“Title IX is about maintaining that binary separation,” he said. “Maybe it should be changed. But that’s not what this is about.”
“That would be a new definition that transgender somehow fits into the concept of gender,” DeGrandis continued.
Does the U.S. Supreme Court’s Bostock ruling apply? The specific question of transgender sports bans – and whether they comply with Title IX – has not made it to the U.S. Supreme Court. However, plaintiffs have cited a 2020 Supreme Court decision, Bostock v. Clayton County, to support their claim that a law restricting transgender students would violate Title IX.
In Bostock, the court ruled 6-3 that Title VII, a separate federal labor law, protects transgender workers from workplace discrimination. In the majority opinion, Justice Neil Gorsuch wrote that Title VII’s prohibition on discrimination “on the basis of sex” also applies to sexual orientation and gender identity.
“An employer who fires a person because he or she is gay or transgender fires that person because of characteristics or actions that he or she would not have questioned in members of the opposite sex,” Gorsuch wrote. “Sex plays a necessary and unmistakable role in the decision, precisely what Title VII prohibits.”
On Tuesday, Erchull argued that although he does not rule on Title IX, Gorsuch’s interpretation likely applies to Title IX, which uses similar language: “on the basis of sex.” Erchull said the Supreme Court will likely rule in favor of Tirrell and Turmelle’s Title IX claims, using the same reasoning.
DeGrandis dissented, arguing that the Bostock decision was limited to Title VII and concerned an administrative rule, which made it a different issue.
He also questioned whether the two plaintiffs needed a stay of the law and whether they would suffer “irreparable harm” if they could not play on their sports teams – the necessary prerequisite to stopping a law.
“It’s certainly a harm that she wants to do something and the law doesn’t allow her to do it,” DeGrandis said. “But it’s not irreparable harm.”
Erchull said participation in sports is essential for social development and bonding, and that without the judge’s order, the girls would suffer irreversible harm. If Turmelle – who does not currently play on a sports team – shows up at school without the opportunity to play sports, she will be embarrassed when discussing her sports plans with her classmates, Erchull argued.
“We believe she will suffer physical harm the moment she enters the building.”
In the end, McCafferty sided with the plaintiffs and seemed skeptical of the state’s arguments, agreeing that the Bostock case was compelling and saying that as a judge on the court, she would have to follow Gorsuch’s decision.
“Bostock is a Supreme Court decision, and Bostock makes it clear that a law that says ‘on the basis of sex’ means you can’t discriminate on the basis of sex,” McCafferty said. “You can’t discriminate against someone because they’re transgender.”
And she questioned whether the state’s intent behind HB 1205 – to ensure safety and fairness for other female athletes – applies to Tirrell and Turmelle. Both girls have received hormone therapy and other treatments to aid their gender transition, reducing any benefits they might have, McCafferty said, noting that plaintiffs would have to prove that in court with medical experts.
“We are not alleging that the plaintiffs have any biological advantage – not for the purposes of this hearing,” DeGrandis said after McCafferty asked him about it.
“So there is no biological advantage, no physiological advantage. So how can this law withstand rational scrutiny in terms of the plaintiffs?” McCafferty said.
McCafferty’s extended temporary restraining order expires at midnight on Sept. 10. Erchull said at a news conference after the hearing that he expects to issue her written decision on whether to impose a longer stay sometime before that deadline. After that decision, the parties and the judge will decide when to hold a hearing.
This story was originally published in the New Hampshire Bulletin.
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