Judge extends order allowing transgender New Hampshire student to play sports • New Hampshire Bulletin

A federal judge is allowing Parker Tirrell, a transgender teenager, to continue playing high school soccer for two weeks as she weighs whether to take broader action against a new state law that bars transgender girls from playing girls’ sports. 

After a hearing Tuesday, Judge Landya McCaffery of the U.S. District Court of New Hampshire issued a two-week extension of her Aug. 19 order that temporarily blocked the law from taking effect against Tirrell, who wanted to attend practices and games with her soccer team. 

McCaffery indicated she will make a decision over whether to issue a more extensive stay in the coming weeks — a stay that would take effect while the case goes to a trial.

The law, House Bill 1205, requires that schools separate all sports teams from grades 5 to 12  into “males, men, or boys,” “females, women, or girls” and “coed or mixed” and bars any student from participating on a girls’ team unless they were born biologically female. The law requires that “female” athletes — and only “female” athletes — produce birth certificates proving their gender at birth, and opens up school districts to private lawsuits if they do not comply.

Tirrell, from Plymouth, is suing the state along with Iris Turmelle from Pembroke. The two are represented by the GLBTQ Legal Advocates & Defenders (GLAD) and the American Civil Liberties Union of New Hampshire. 

A Title IX argument

The plaintiffs allege the new state law is a violation of Title IX, a federal law that requires gender parity in public schools, and that it is a breach of the equal protection clause of the Fourteenth Amendment. The defendants, who include the Department of Education and the Attorney General’s Office, say the law was validly passed in the interest of providing fairness and safety, and shouldn’t be overturned.

The parties first met Aug. 19 when plaintiffs sought and received an emergency injunction, known as a temporary restraining order, to allow Tirrell to participate in soccer practice that evening. On Tuesday, McCafferty heard from both parties over whether she should issue a preliminary injunction against the law, which would tie it up pending a trial to explore the merits of the lawsuit in the coming months or year.

Chris Erchull, an attorney for GLAD, argued to the court that Title IX prohibits states and school districts from discriminating “on the basis of sex,” and that a law banning transgender students from the sports teams of their gender identity fits the definition of that discrimination.

“Because the policy intends to discriminate based on transgender status, the policy necessarily intends to discriminate based on sex,” he said. 

Michael DeGrandis, an attorney for the Attorney General’s Office, countered that lawmakers had a legitimate purpose to pass the law and said Title IX, which was passed in 1972, was written to address men and women and not to apply to transgender cases.

“Title IX is about preserving this binary separation,” he said. “Maybe it should be amended. But that’s not what we’re dealing with here.”

“That would be a new definition, that somehow transgender fits within the notion of sex,” DeGrandis continued.

Does U.S. Supreme Court’s Bostock ruling apply?

The specific issue of transgender sports bans — and whether they adhere to Title IX — has not made it to the U.S. Supreme Court. But plaintiffs have cited a 2020 Supreme Court decision, Bostock v. Clayton County, to bolster their claims that a law restricting transgender students would violate Title IX.

In Bostock, the court held 6-3 that Title VII, a separate federal statute pertaining to employment law, protects transgender employees from being discriminated against in the workplace. In the majority opinion, Justice Neil Gorsuch wrote that Title VII’s prohibition of discrimination “because of sex” applies to sexual orientation and gender identity.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

On Tuesday, Erchull argued that even though Gorsuch was not ruling on Title IX, Gorsuch’s interpretation would likely apply to Title IX, which uses similar language: “on the basis of sex.” Erchull said the Supreme Court would likely rule in favor of Tirrell’s and Turmelle’s Title IX claims following the same argument.

DeGrandis disagreed, arguing that the Bostock decision is limited to Title VII and involved an administrative rule, making it a different circumstance.

He also questioned whether the two plaintiffs needed the law to be stayed and whether they would suffer “irreparable harm” if they could not play on their sports teams, the necessary standard to halt a law. 

“It’s certainly harm that she wants to do something and the statute won’t let her do it,” DeGrandis said. “But it’s not irreparable harm.”

Erchull said sports participation is essential to social development and bonding and that the girls would suffer irreversible harm without the judge’s order. If Turmelle — who is not currently playing on a sports team — shows up to school without the ability to play sports, she will feel shame when talking to her peers about sports plans, Erchull argued. 

“We believe that she suffers a constitutional injury the second she walks into the building.”

In the end McCafferty sided with the plaintiffs and seemed skeptical of the state’s arguments. She agreed that the Bostock case was persuasive and said as a trial court judge she needed to defer to Gorsuch’s decision. 

“Bostock is a Supreme Court decision and Bostock makes clear that a statute that says ‘because of sex’ means you can’t discriminate because 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 — applied to Tirrell and Turmelle. Both girls have received hormone therapy and other treatments to aid their transitions, reducing any advantage they might have, McCafferty said, noting that that would be something for plaintiffs to prove at trial with medical experts. 

“We are not arguing that the plaintiffs have any biological advantage — not for the purposes of this hearing,” DeGrandis said after questioning from McCafferty. 

“So there’s no biological advantage, no physiological advantage, and so how does this statute pass even rational review specific to the plaintiffs?” McCafferty said. 

McCafferty’s extended temporary restraining order will expire at midnight on Sept. 10. Erchull said at a press conference after the hearing that he expects she will issue her written decision on whether to issue a longer stay sometime before that deadline. After that decision, the parties and judge will decide when to hold a trial.