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SALT LAKE CITY — A judge who declined Wednesday to dismiss a lawsuit from three transgender girls hoping to play high school sports on a girls team is now considering whether to issue an injunction that would halt enforcement of the new law that prevents them from doing so.
Attorneys argued the case before the judge in a hearing on Thursday, debating what legal standards need to be met in order for an injunction to be granted and whose burden it is to prove to the judge that those standards have been met.
Shannon Minter, legal director of the National Center for Lesbian Rights and an attorney representing the three transgender girls and their families, said there will be serious consequences in the girls' lives if HB11, a 2022 law passed in the final hours of the Utah legislative session, isn't placed on hold while the lawsuit moves forward.
"These harms are not just imminent, they are immediate," Minter said.
Third District Judge Keith Kelly is taking time to consider evidence that was submitted to the court only through exhibits and plans to make a ruling on whether to stop the law from being enforced over the next few days. Kelly said he will announce the decision either through a written order or through a verbal ruling in a hearing scheduled for Tuesday morning.
The transgender girls
To protect their privacy, the plaintiffs and their families did not watch the hearing from the courtroom but were able to view the proceedings from another room in the courthouse.
Jenny Roe, under the name given in the lawsuit, is a 16-year-old who came out four years ago and has received medical hormone treatment for the last four years. Minter said although her grades have suffered in the past, being on the girls volleyball team during her junior year changed that. Although her grades are not currently good enough for her to compete, she wants to play volleyball in the fall or basketball in the winter.
"This law scares me. I cannot imagine missing my last volleyball season with my team," Roe said in a quote read by Minter.
Through the attorney, Roe's mother said Roe has also lost her friend group and her grades are suffering after the law went into effect in July, and that motivation to be on the team could help.
"This time — six months in the life of an adolescent — can be extremely critical," Minter said.
Jane Noe is in eighth grade, but Minter said her motivation is to keep training for the high school girls swim team. Minter said Noe's friends and teammates have always known her as a girl because she has not been public about being transgender. She has, however, changed her legal name and gender. The attorney said the recent law has threatened Noe's privacy and if she is not able to be on the girl's swim team, she plans to do home school.
"The law that Utah passed really scares me. … It feels like they wish I didn't even exist," Minter said, quoting Noe.
He said although Noe is in eighth grade, the ban is affecting her now and has had a drastic impact on her life. Noe's mother has said the law undermined her confidence.
Jill Poe, as named in the lawsuit, is a ninth grader who recently came out to her parents and started taking hormone blockers. She hopes to eventually join the girls cross-country and track teams at her high school. Although prior to HB11's passage Poe would have needed to be on hormone blockers for longer in order to play girls sports, Minter said she would still benefit from the ability to petition to join the team as she would have before transgender girls were completely banned from playing girls sports.
"The ban scares me. … Some days I feel hopeful this lawsuit will stop the ban, but other days I just feel sad," Minter said, quoting Poe.
Poe's father said it feels like Utah lawmakers are trying to erase their children, according to Minter. He said the ban is not just causing harm to these three girls but to their families, who want to help and support them.
Minter said even though the girls have other barriers that could keep them from playing a high school sport at the beginning of this school year, their rights are being infringed because they don't have the ability to try out for the sport or apply to try to have the opportunity because of HB11.
Injunction not warranted, state says
On Wednesday, the judge ruled in favor of the families on two separate motions to dismiss and one motion relating to a specific order, although some questions inside one motion are still being considered.
Thomas Lee, a former Utah Supreme Court judge, said the burden is different in Thursday's hearing in that the families have to prove that the criteria are met for an injunction to be issued. He said the families have not proven the girls will be irreparably harmed if an injunction is not issued, nor have they shown there is a substantial relationship between the Utah Legislature's intent and the law that was passed.
Lee spoke on behalf of those the lawsuit was filed against: the Utah High School Activities Association, Granite School District, Jordan School District and superintendents from those districts.
He argued that HB11 is meant to reestablish protection for women and that sometimes equality — particularly gender equality — requires treating people differently instead of treating them the same. He said it is undisputed that once a transgender girl has reached puberty there are physical advantages they have over other girls.
Lee said asking the court to cement a constitutional standard for a relatively new issue that is still developing is a drastic move on the families' part. He said presumption should be that the law is constitutional, and courts should not go against a law unless the families' have met the burden to show it is needed.
He also argued that although each of the plaintiffs care deeply about the law, none of them are in a position in which a court order in the case could allow them to play girls high school sports; they each have other barriers.
The families' attorney disagrees
In his arguments, Minter claimed the burden of proof shifts to the state because of the type of constitutional issue that was brought. If the judge decides this is correct, then if neither side has proven their case, a preliminary injunction could still be issued. He said a gender-based law requires a higher level of scrutiny in the courts.
Minter spoke about Gov. Spencer Cox's response to the bill, one he vetoed although the veto was overridden, and emphasized a point he said Cox made that this law causes significant harm to only a few who are already at high risk.
He said of 75,000 students in Utah, he is only aware of about four transgender kids trying to play sports.
"The sole impact of this law was to exclude transgender girls," Minter said.
The family's attorneys said the other side would have to prove that a complete ban is necessary to advance the state's interests and that there is not a less restrictive alternative that would work for the injunction to be denied. He pointed to Section 10 in HB11, which he says is the less restrictive alternative. As opposed to Section 9 of the bill which the lawsuit contests, Section 10 would allow transgender students to go before a commission with details about their particular situation and ask for permission to play.
Minter said the judge should consider "devastating harms caused to a group of children" on their side, compared to the state which he said could not point to any harm to anyone by the law ending its effect. He said each of the transgender girls has shown they have gender dysphoria and are taking medications and they all have had a positive impact on their lives from sports.
Minter said the ban keeping them from playing on girls sports teams has taken away part of their identity and has had negative impacts on their mental health, desire to practice sports and grades.
