A federal judge announced that two Arizona lawmakers have lost their bid to dismiss a lawsuit challenging a state law that bans transgender girls from playing on girls’ sports teams.
The young plaintiffs, who identify themselves pseudonyms Megan Roe and Jane Doe, have adequately alleged that they suffer from gender dysphoria and that their disability is protected by the Americans with Disabilities Act and the Rehabilitation Act, said Judge Jennifer G. Zipps of the U.S. District Court for the District of Arizona. Roe and Doe are both transgender girls who claim Arizona’s SB 1165 unfairly excluded them from participating in girls’ sports because of their gender dysphoria.
Because the ADA’s language does not explicitly exclude gender dysphoria, treating it as such “would be unjustifiably rewriting something Congress has decided not to rewrite,” Zipes said.
The state law created a civil cause of action for students and schools to seek injunctive relief and damages to sue schools and organizations, such as the Arizona Association of State Schools, one of the defendants in the case, for violating the ban. Prior to the law, the AIA allowed transgender students to play on teams consistent with their gender identity, with the approval of medical and psychiatric experts.
The AIA sets the rules for interscholastic sports for students in grades 9 through 12 at member public and private schools, and each school or district sets its own rules regarding transgender sports participation. The lawsuit follows a series of lawsuits filed by conservative lawmakers and lawyers challenging laws regarding transgender athletes’ participation in girls’ sports.
In seeking to dismiss the lawsuit, the state lawmakers argued that gender dysphoria is excluded from the protections of the ADA under 42 USC Section 12211(b), which excludes “cross-dressing, transvestites, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from a physical disability, and other sexual behavior disorders” from the ADA’s coverage. The lawmakers also argued that the complaint fails to allege a major life activity that is significantly restricted by Arizona law.
Zips rejected the lawmakers’ arguments, ruling that the “‘gender identity disorder'” contained in the statutory exception is fundamentally different from gender dysphoria, a recognized psychiatric diagnosis.
Zips said that when the ADA was enacted in 1990, gender dysphoria was not excluded. And while the medical understanding of gender identity disorder and gender dysphoria changed in 2013, as outlined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Zips added that the diagnoses are still different.
“Gender dysphoria is unique in that it is more than simply identifying with a different gender. The essential element of ‘gender dysphoria’ is the ‘clinically significant distress’ felt by a person who experiences a discrepancy between their assigned sex and their gender identity,” Zips said.
Zips also rejected the inclusion of gender dysphoria in the ADA’s blanket exclusion because the condition is not sufficiently similar to “‘cross-dressing, transsexualism, pedophilia, and exhibitionism'” or “‘other sexual behavior disorders.'” In doing so, Zips cited the DSM-5 to juxtapose the behavioral aspects of the other conditions listed in the exclusion with gender dysphoria’s definition of “clinically significant distress.” Zips also noted that Congress has directed courts to interpret the definition of “disorder” broadly.
And despite the lawmakers’ argument that playing a sport doesn’t qualify as a substantial life activity, Zips concluded that Roe and Doe plausibly held that symptoms of gender dysphoria, including anxiety, depression and self-harm, can significantly limit a major life activity. The lawmakers’ argument “confuses the analysis,” Zips wrote.
“The issue is not whether ‘playing a sport’ is a major life activity, but rather whether ‘playing a sport’ is an activity from which the plaintiffs have been excluded because of their disability,” Zips said.
Debevoise & Plimpton LLP, Osborn Maledon PA, and the National Center for Lesbian Rights are representing Roe and Doe. James Otis Law Group LLC is representing the two state legislators. Wilenchik & Bartness PC is representing Thomas Horne as state public schools superintendent. Tempe Tri-District Legal is representing Laura Toenges as superintendent of the Kyrene School District. Jones Skelton & Hochuli PLC and DeConcini McDonald Yetwin & Lacy PC are representing the Gregory School. Lewis Brisbois Bisgaard & Smith LLP is representing Arizona Interscholastic Association Inc.
The case is Doe v. Horne, 2024 BL 212969, D. Ariz., No. 4:23-cv-00185, 6/21/24.