While his office is in court defending the state’s new law protecting girl’s sports from biological males, New Hampshire Attorney General John Formella has joined 25 other state attorneys general urging the U.S. Supreme Court to take up the cause.
“One of the most important jobs of the New Hampshire Attorney General is to defend state sovereignty,” Formella told NHJournal in a statement. “In this instance, given the multi-faceted challenge to the state’s ability to legislate in this area, I felt it was critical that New Hampshire join this nationwide effort.”
In New Hampshire, the state’s new law (H.B. 1205) was set to go into effect on Monday. It specifically bars biological males from competing in girls sports ranging from fifth to twelfth grade.
The American Civil Liberties Union of New Hampshire, along with GLAAD, represented a biologically male student who wants to play soccer on a girl’s team. They urged U.S. District Court Judge Landya McCafferty to issue a temporary restraining order so the student could practice with the team this week.
Formella’s office argued there is no basis for nullifying state law while an appeal is pending. But McCafferty, an Obama appointee, disagreed and issued a temporary restraining order. And, she added, a more expansive injunction of the law could be coming after a hearing next Tuesday.
The temporary restraining order currently only applies to the Plymouth Regional High School soccer player.
At the national level, Formella and his fellow attorneys general want the Supreme Court to review B.P.J. versus West Virginia State Board of Education and a similar challenge in Idaho in which courts similarly overrode the local laws. In their brief, they argue their states’ respective laws “reflect basic biology” and that “ignoring basic biology robs women and girls of an equal opportunity to compete for athletic accolades.”
The attorneys general point to Title IX, the landmark 1972 federal civil rights law passed to protect the rights and interests of women
“For the last fifty years, it (Title IX) has guaranteed women and girls equal access to athletic opportunities,” the brief states. “But decisions that radically reinterpret Title IX do the opposite: turning a statute designed to give women and girls equal access into a law that actually bars States from doing exactly that whenever a biological male identifies as female.”
The Biden administration has tried to unilaterally change the definition of what a woman is under Title IX to include men who identify as female — an attempt that was slapped down by the Supreme Court last week.
“Given New Hampshire’s common interest, we have joined several amicus efforts to offer our support for similar statutes in other states and to ask the Supreme Court to clarify that these laws—and ultimately New Hampshire’s law—are not precluded by any contravening federal regulatory, statutory, or constitutional provisions,” Formella told NHJournal.
A Supreme Court ruling affirming the right of states to protect girls sports would supersede an rulings against New Hampshire’s law.
House Deputy Majority Leader Jim Kofalt (R-Wilton) issued a statement condemning McCafferty’s temporary ruling and labeled her as an “activist judge.”
“Obama appointee and activist federal judge Landya McCafferty overreached when she issued a temporary restraining order allowing a biological male to continue competing against girls, a violation of the law passed by both legislative bodies and signed by the governor,” Kofalt stated.
And, Kofalt added, the new law protects girls from potentially devastating injuries.
“We have recently seen countless stories, from high school to professional and Olympic levels, of biological men battering women and calling it ‘sport,’” Kofalt added in his statement. “Republicans in the state of New Hampshire took a firm stand in passing HB1205, which protects women and girls from physical harm and preserves fairness in athletic competition.”
In one incident that caught the attention of New Hampshire Senate Republicans, a bearded six-foot tall biological male was caught on video ragdolling a female player during a high school basketball game in Massachusetts last spring.
Alliance Defending Freedom, a legal advocacy group assisting West Virginia and Idaho as they defend their laws, praised Formella and other affected state attorneys general for filing their friend-to-the-court brief.
Christiana Kiefer, ADF Senior Counsel, told NHJournal she could not speak to the specifics of the Plymouth Regional High School case, but she noted, “24 states have now passed laws just like New Hampshire’s.”
“There’s clear and obvious biological reasons for that,” Kiefer said. “Scientifically, males have a 10-50 percent performance advantage over comparably trained female athletes.”
Kiefer said she’s confident the issue will eventually be decided by the Supreme Court.
“It’s become such a big national issue, with so many lawsuits percolating around the country, certainly the Supreme Court will need to deal with it sooner rather than later,” she said. And she believes the court will rule in favor of protecting girls.
“They’re common sense, they’re constitutional, and they’re consistent with Title IX,” she said. “Girls have almost no chance of succeeding, and these statewide laws protecting female sports not only make sense but are also consistent with Title IX to provide girls with athletic opportunities.”
