#

United States District Court Judge Landya McCafferty ruled Tuesday that the state’s new law protecting girls school sports from male competitors is a clear case of discrimination.

“This issue ‘is not even a close call,’” McCafferty wrote in her ruling. “HB 1205, on its face, discriminates against transgender girls.”

McCafferty’s ruling is based on the controversial premise that males who identify as females are girls in the same way that biological females are, and they are protected by the same antidiscrimination laws designed to protect biological females. The issue is almost certain to eventually be addressed by the U.S. Supreme Court.

As a result, high school freshmen Parker Tirrell and Iris Turmelle, two biological males who identify as female, are allowed to play girls sports pending the outcome of their lawsuit against the state.

McCafferty’s injunction against HB 1205 only applies to Tirrell and Turmelle at this time. McCafferty’s statements in court and her rulings so far, however, indicate she’s likely to overturn the law soon.

Tirrell and Turmelle, represented by GLAD and the New Hampshire ACLU, brought the lawsuit soon after Gov. Chris Sununu signed the bill into law this summer. HB 1205 requires New Hampshire student-athletes to play on sports teams that correspond to the biological sex recorded on their birth certificates.

The requirement that students stick with their biological sex at birth for sports teams is an obvious legal mechanism to discriminate against transgender girls, the judge claimed.

“Indeed, transgender girls are the only group whom the Act bars from playing on the team associated with their gender identity. HB 1205’s ‘disparate treatment of transgender girls because they are transgender is clear on the face of the statute,’ and this ‘singling out of transgender females is unequivocally discrimination,’” McCafferty wrote.

HB 1205 supporters have said the bill aimed to protect the integrity of girls sports and prevent biologically male transgender students from gaining a competitive advantage over biological girls. The bill also sought to protect girls from being injured by biologically male athletes.

But McCafferty notes that neither Tirrell nor Turmelle are likely to have any physical advantage over their prefigured teammates. Both children are receiving female hormone therapy and are not expected to undergo normal male physical development. 

“Neither Parker nor Iris have undergone male puberty. Neither of them will undergo male puberty. Both have received hormone therapy to induce female puberty, and both have developed physiological changes associated with female puberty. It is uncontested that there is no medical justification to preclude Parker and Iris from playing girls’ sports,” McCafferty wrote.

Instead, McCafferty relies largely on an expansive reading of the 2020 U.S. Supreme Court’s Bostock v. Clayton County decision regarding sex-based dress codes in the workplace. However, Justice Neil Gorsuch, writing for the majority, explicitly stated that the ruling only applied to the case the Court was addressing at the time.

“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”

Michael Garrity, spokesman for the New Hampshire Department of Justice, said the agency is considering the next appropriate step.

“We are currently reviewing the court’s decision and are in the process of evaluating the implications of the ruling. We remain dedicated to providing a safe environment for all students. The state will continue to consider all legal avenues to ensure that we uphold both the law and our commitment to student welfare,” Garrity said.

A federal judge ruled Monday that a male Plymouth Regional High School who identifies as a girl can still play on the girl’s soccer team.

United States District Court Judge Landya McCafferty, an Obama appointee, issued a temporary restraining order allowing Parker Tirrell, 15, to keep playing, in violation of HB 1205, the new law banning biological boys from girls sports.

The order only applies to Tirrell and no other students in New Hampshire. However, McCafferty said in her order that a more broad injunction against the law is possible following a hearing set for Aug. 27.

The cause of the high school sports careers of Tirrell and Iris Turmelle, a Pembroke Academy boy who also identifies as a transgender girl, is being championed by GLAAD and the American Civil Liberties Union of New Hampshire in the federal lawsuit filed earlier this month.

Turmelle is not playing on any fall sports teams and was not part of Monday’s hearing.

HB 1205 which took effect on Monday, was passed in the wake of a series of high-profile incidents in which biological males won girls championships or injured female competitors while playing girls sports in New England. But GLAAD lawyer Chris Erchull argued Monday that Tirrell has no physical advantages over the girls since having started hormone therapy, according to NHBulletin reporting.

Assistant Attorney General Michael DeGrandis argued against the temporary restraining order, telling McCafferty there is no need to block the law while the case is pending.

Monday’s hearing came as a social media rumor swirled that the state planned to make a deal on the temporary restraining order with Tirrell and the GLAD and ACLU lawyers. New Hampshire Department of Justice General Counsel Chris Bond told NHJournal no deal was ever in the works.

“There is not now and there never was a deal regarding entry of a TRO. The Attorney General’s Office is responsible for defending the duly enacted laws of the State of New Hampshire when they are challenged in court. Given that mandate, the AGO will not voluntarily assent to a TRO that would result in the temporary suspension of the provisions of [the law],” Bond said in an email.

Those on the left see McCafferty’s ruling as the first victory in abolishing the law.

“Transgender youth, like all adolescents, want and deserve every opportunity to experience joy, including through activities like school sports. We won’t stop fighting until they have that opportunity again,” the ACLU posted on social media.

Meanwhile, some on the right are frustrated, not by Monday’s ruling, but by the law itself. Cornerstone Action Executive Shannon McGinley said HB 1205 was doomed to fail due to the actions of Gov. Chris Sununu.

Last month, when Sununu signed HB 1205 to keep biological males out of girls sports he also vetoed HB 396, a law that would have made it legal for the state to make legal distinctions based on biological sex and separate men from women in bathrooms, locker rooms, and jails.

“The new law uses birth certificates as the definition of biological sex – an unwieldy and unworkable concept that has failed both practically and legally around the country,” McGinley said.

“What Gov. Sununu has just done is a fraud, not a compromise. He caved entirely to the most far left 10 percent of the state while giving nothing to female prisoners, athletes, and vulnerable students,” McGinley said.