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SALT LAKE CITY — Third District Judge Keith Kelly decided Wednesday that three transgender girls and their families do have the ability to pursue a lawsuit against Utah's ban on transgender girls participating in girls sports.
He said his ruling is based on an assumption that the claims in the lawsuit are true. He declined one motion to dismiss the case that was filed by the state and school districts, and partially ruled in the families' favor on another motion, but waited to rule on some of the disputed claims. He said he wants more time to consider and will likely issue a written ruling to address some questions.
Kelly noted that these motions came to him on an expedited basis, and he needed to make some ruling before a hearing scheduled for Thursday.
The lawsuit was filed in May by the American Civil Liberties Union of Utah and advocacy groups on behalf of two families of transgender girls. It claims HB11, a bill passed in the final hours of this year's legislative session, is causing psychological harm and lost opportunities.
The bill was initially vetoed by Gov. Spencer Cox, but the Utah Legislature overturned the veto. Later, another bill passed which indemnifies school districts and the state's activities association from lawsuits associated with HB11.
Multiple measures were taken to protect the identities of the families at Wednesday's hearing. The hearing was not broadcast online and could only be viewed in the courthouse. The judge denied media requests to bring cameras into the courtroom or to record the hearing. The families even participated from a separate room in the courthouse so they couldn't be seen by anyone attending the court hearing. The judge and attorneys from each party went to that other room for the plaintiffs to give their appearances and the families listened through a phone call and later a secured video call between the two rooms.
The lawsuit was initially filed by two transgender girls, a 16-year-old who wants to play volleyball and a 13-year-old who wants to swim, and their parents. In a second amended complaint, a 14-year-old who wants to compete on a girls cross-country and track team was added to the lawsuit.
Arguments from the state
The lawsuit was filed against the Utah High School Activities Association, Granite School District, Jordan School District and superintendents from those districts, and their attorneys claimed on Wednesday the transgender girls have not proven they were impacted by the ban or that a lawsuit could give them relief. They asked the court to dismiss the lawsuit and said the Legislature is the best place for the issues to be discussed.
The motions to dismiss were filed less than a month ago ahead of a preliminary injunction hearing, which is scheduled for Thursday. A judge will hear arguments Thursday on whether enforcement of the new Utah law should be put on hold while the case is litigated.
Thomas Lee, a former Utah Supreme Court justice, argued that the plaintiffs have not put forward enough information to prove that they have standing. He said they must prove they would be able to play girls high school sports without HB11 being in place to be able to pursue the lawsuit, and until that is proven, they should be considered "concerned bystanders." Lee said he is sure they are deeply concerned with HB11, but that alone is not enough.
Specifically, he said the transgender girls would need to show they began taking puberty blockers early enough that they would likely qualify to play, but not under section 9 of HB11, the section contested in the lawsuit.
Under a previous order that was affirmed by the judge on Wednesday, the girls will not have to file personal medical information with the court or submit to questions or examinations from the other side until after the preliminary injunction stage of the case. Because of this limitation, the transgender girls and their attorneys are only able to present general damages and not specific diagnosed conditions as evidence.
Lee argued that without the opportunity for him to see evidence that the girls are harmed by the law, and investigate that evidence with their own evaluations, there should not be enough evidence for the lawsuit to proceed. He said it is the families' responsibility to provide that information, or the case should be dismissed.
"We are in no position to be able to test those allegations, nor is the court," Lee argued.
Addressing a separate motion to dismiss the claims, Lee's partner John Nielsen said the petition in the case does not sufficiently claim something where the courts would be able to provide relief.
He said the lawsuit does not challenge the classification the Legislature made, biological boys compared to biological girls as defined in HB11, but created another distinction. Nielsen said the way the claims are stated, the other side would need to prove the statute, section nine of HB11, is not applicable and is unconstitutional for all biological males.
"Sometimes equality requires the same treatment. … Sometimes it requires different treatment. That's why we have girls sports in the first place," Nielsen said.
Because transgender rights is a relatively recent concept, Nielsen also argued that it cannot be claimed to be protected under certain provisions of the Utah Constitution, as claimed by the other side.
Response from the families' attorneys
Fred Rowley, one of the attorneys for the transgender girls and their parents, said the families don't need to prove that they could or would be on a high school girls sports team without HB11, but only that they need to show they were denied an opportunity to try to be on the team.
He also said there are other harms to the plaintiffs from the bill that don't rely on their ability to be part of the teams — including amplified emotional, social and psychological harms that could be faced by any transgender girl.
"We allege that, with respect to each of the plaintiffs here, that they intend to participate in girls sports and that the ban prevents them from doing that," Rowley said.
He said the Legislature anticipated there would be a constitutional legal challenge to HB11.
In response to Nielsen's arguments, Rowley said they do have a specific claim, based on part 9 of HB11 discriminating against all transgender girl athletes. He said they cited that some of the transgender girls have undergone hormone treatment simply to address claims that have an unfair biological advantage when playing girls sports.
Part 10 of HB11, which Rowley says they are not disputing, would allow transgender girls to petition a commission to argue that they specifically should be allowed to participate in some sports.
Rowley said HB11 defining sex as biological sex discriminates against people whose sex is different, such as a transgender girl, and said they are being targeted.
"The science doesn't support this idea that there is an inherent advantage, based on biology at birth, that translates into a performance advantage later on," Rowley said.
On the first motion to dismiss debated on Wednesday, the judge ruled that the families do have standing to bring their claims and have shown a distinct injury showing they have a personal interest in the case.
"There's sufficient evidence in the record to show that these three transgender girls are not just 'interested bystanders,'" Kelly said. He said rather the evidence shows they are individuals who are personally suffering.
He said although there is not yet evidence of specific mental health harms from the transgender girls in what has been given to the court, besides gender dysphoria, there is evidence that the three individuals are suffering similar types of the general harms that are discussed.
"Even if the evidence in the record does not consist of evidence of diagnosed psychological harm … that denial of opportunity that is alleged — that these three transgender girls are suffering those types of generalized harms — is sufficient," he said.
On the second motion to dismiss, Kelly ruled that at least one of the claims in the lawsuit, the uniform operation of laws clause, met the standard to move forward. This was enough for the case to move forward on a preliminary injunction debate. He said that the statute inherently excludes transgender girls from sports that girls are allowed to participate in.
"This is a ban that is designed to prevent transgender girls from competing with other girls in sports, categorically," Kelly said.
Because the case was not dismissed, the court will be considering a preliminary injunction on Thursday during a second full-day hearing.