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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 biologically male athlete is expected to win big at the NHIAA indoor track championship this weekend while competing against girls. And there is currently nothing anyone can do about it. 

Not that Granite State Democrats want to. They’re opposing legislation to protect female athletes from male competitors. And one House Democrat dismissed concerns about the track meet as unimportant because it involves an “obscure competition.”

Kearsarge Regional High School sophomore Maelle Jacques, who competes on the Kearsarge girl’s team, has already racked up numerous first place wins competing against female athletes at other Division II schools over the past two seasons.

This season, Jacques dominated in the high jump competition and is the only athlete in the state competing in the girl’s division to break five feet. Competition among high school boys in New Hampshire has seen more than a dozen athletes break the five-foot mark this season.

Kearsarge Superintendent Winfried Feneberg released a statement declaring Jacques has the right to compete in any sport and as a member of any gender.

“Each student-athlete has the right to compete in the activity of their choice,” Feneberg said. “We believe that limiting access to any activity violates our core mission and vision, which are grounded in supporting every student and student-athlete’s right to pursue their goals and interests,”

Outspoken supporter of women’s athletics and 12-time All-American swimmer Riley Gaines responded to the Maelle Jacques story by calling out the athlete’s parents.

“How could the parents of this boy allow their son to cheat deserving women out of opportunities? And why don’t the parents of the girls stand up and say ‘no’ for their daughters?” Gaines posted on social media. “This country is full of failing, gutless mothers and fathers.”

The championship scheduled for Saturday at Plymouth State University is being held under the aegis of the New Hampshire Interscholastic Athletic Association. While NHIAA Executive Director Jeffrey Collins did not respond to requests for comment, the organization is fully supportive of allowing athletes to choose their gender for the purposes of competition.

“The NHIAA is committed to providing transgender student-athletes with equal opportunities to participate in NHIAA athletic programs consistent with their gender identity,” the NHII eligibility policy states. “The NHIAA has concluded that it would be fundamentally unjust and contrary to applicable state and federal law to preclude a student from participation on a gender-specific sports team that is consistent with the public gender identity of that student for all other purposes.”

Parents could change this if they started getting involved at the local school board level, said Shannon McGinley, executive director of Cornerstone Action.

“If school boards feared their constituents more than they feared (law firm) Drummond Woodsum and leftist superintendents, in a matter of months, we could have half the school districts in the state organized into an alternative NHIAA,” McGinley said. “The solution is for parents to stop accepting cowardly excuses from school board members who ran as conservative.”

Sen. Tim Lang (R-Sanbornton) is sponsoring SB 524 to address what he sees as the basic unfairness of male athletes forcing their way into sports for girls and women. Lang’s bill requires high school and college athletes to compete in the division that matches their biological sex at birth. 

“I’m a father of four kids, two of whom are girls, and I would not want my daughters bumped from a sports team because a biological male, who had a physiological advantage, chose to play on that sports team,” Lang said.

Biologically male athletes have inherent and obvious physical advantages against women and girls, he said. Medical science shows men have high bone density, more muscle mass, and even process oxygen differently than women, Lang said.

Rep. Timothy Horrigan (D-Dover) testified against SB 524 on Tuesday, arguing that “so-called ‘biological females’” did not need protection from males in their sports.

“We’re especially worried about cis women or cis girls, but this also prevents trans men from competing,” Horrigan said.

And Horrigan dismissed the case of Maelle Jacques because it involves an “obscure competition.”

“We don’t even know if she’s actually trans,” Horrigan said of Jacques, “but if she is, that’s certainly a very unfair thing [to keep her from competing]. A lot of these cases, they are pretty obscure competitions that normally sports fans wouldn’t be paying much attention to.”

Lang says his bill is not an attempt to create culture war headlines over people who suffer from gender dysphoria. He simply wants to protect women’s sports and preserve the mission of Title IX.

“This isn’t about gender; this is about biological sex,” Lang said.

Did Betsy DeVos write the Sununu administration’s back-to-school plan?

According to Democrats Andru Volinsky and Dan Feltes — absolutely.

“This Sununu-Edelblut-DeVos agenda document abandons the state’s responsibility to ensure a safe return to schooling,” Executive Councilor Volinsky said of the Sununu administration’s guidance document.

“Instead of releasing an education plan by New Hampshire, for New Hampshire, Governor Sununu outsourced New Hampshire’s education reopening plan to be written by Secretary of Education Betsy DeVos’ D.C. consultants,” state Sen. Feltes said in a statement.

But do the facts, and basic logic, back their claims?

THE SET UP:

On Tuesday, Gov. Chris Sununu released his administration’s 56-page guidance document for reopening New Hampshire schools. The key word, Sununu reiterated, is “flexibility.” His plan contains almost no mandates (a key point we’ll come back to later) and instead offers “guideposts,” as Sununu calls them, for schools to use should they choose to have classroom instruction, Zoom learning from home, or some hybrid of both.

Granite State Democrats and the state’s teachers unions immediately expressed their displeasure. “We had hoped for a set of minimum safety standards for all schools to achieve before they were safe to reopen. Instead, we received 56 pages of ‘shoulds’ not ‘shalls,'” said NEA-NH President Megan Tuttle.

“With less than two months before school starts, families and teachers wanted certainty; Sununu just delivered chaos,” Feltes said.

“Let’s call Sununu’s ‘plan’ for what it really is — the state abandoning its responsibility to ensure the health, safety, and well-being of students and teachers,” added Volinsky.

THE STORY:

At Thursday’s presser, a writer from the liberal website InDepthNH asked Sununu, “Why did you let [federal Education Secretary] Betsy DeVos’s people write the guidance document for reopening schools?” The question was based on accusations from Feltes and Volinsky, which were in turn inspired by an exchange between Volinsky and New Hampshire Education Commissioner Frank Edelblut at Wednesday’s Executive Council meeting.

Volinsky asked the commissioner, “Who wrote the document and who approved it?”

In a winding, nine-minute series of questions and answers, much of it in education bureaucracy jargon, Edelblut described the process, beginning with the 60-member School Transition Reopening and Redesign Taskforce (STRRT).

“Based on that input from the STRRT committee… the U.S. Department of Education worked along with a consulting firm, AIR, to take all that content and put it into the framework the STRRT committee had organized,” Edelblut said. “That’s the result you see here. Much of the drafting was done by the Department of Education, then it was weighed in on, and a medical perspective was added by Dr. Chan, resulting in the final product we have now produced.” [emphasis added]

And, Edelblut conceded, the final document did not go back to the STRRT committee for their approval before Gov. Sununu released it.

Therefore, Feltes and Volinsky claim, the Sununu administration’s policy was, “written by Betsy DeVos” and foist upon the people of New Hampshire.

THE FACTS:

The first, and most obvious, fact is, whoever wrote the Sununu guidance, it is certainly not the DeVos plan. President Trump and his education secretary have made it perfectly clear that their plan for America’s schools is: “Send all the kids back to class — now!” Just ask union president Tuttle, who tweeted out this quote from the White House spokesperson:

“The President has said unmistakably that he wants schools to open, and when he says open, he means open in full, kids being able to attend each and every day at their school.”

If DeVos really had written Sununu’s plan, it would mandate classroom instruction whether local schools liked it or not.

The second fact is that a cursory view of the meetings of the STRRT (watch the exciting, edge-of-your-seat taskforce meetings here!) reveals the guidance released by Gov. Sununu reflects the will of the task force. As Edelblut told Volinsky, the STRRT laid out “high-level” general guidance on topics like transporting kids and personal protective equipment in the classroom, and the final product reflects those views.

And then there’s the fact that the Sununu administration’s plan isn’t a “plan” at all. They made the decision, one supported by the STRRT, to avoid mandates and let local officials decide what’s best for local schools.

As Sununu told NHJournal on Thursday, “Local control works.”

“I don’t know why they [Feltes and Volinsky] don’t have faith in teachers, administrators and parents to find solutions for themselves,” Sununu said. “I have all the faith in the world that the teachers, parents and principals know how to manage their classrooms, not a governor sitting in the corner office. I don’t know why they don’t have more faith that folks other than themselves might have the solutions for these problems.”

But what about those federal education consultants? Or the “drafting done by the Department of Education?”

It turns out the private consulting firm AIR has been running federal “Comprehensive Centers” since 2005, under contracts awarded by both the George W. Bush and Obama administrations.

They get federal tax dollars to facilitate meetings and draft documents — things that volunteer organizations do for themselves for free all the time, by the way. But wasting tax dollars on redundant government bureaucrats is hardly unique to the DeVos Department of Education.

And AIR’s role is literally laid out in page one of the documents launching the STRRT process back in May:

“The work will be facilitated by the Region 1 Comprehensive Center from the U.S. Department of Education and facilitated by AIR. The work of the facilitator(s) will include:

• Facilitation of large group discussions
• Support the development of the report.

In other words, hold meetings and write a report. Which they did. No conspiracy here.

THE CONCLUSION:

Whether you love or hate Sununu’s local-control approach to reopening schools, there’s no denying: it’s his plan. DeVos and the feds had nothing to do with it.

It’s also, as Sununu likes to point out, a very “New Hampshire” plan, leaving power at the lowest levels of government.

It didn’t have to go this way. Governors in other states are using their power to push mandates on local schools, and Sununu could certainly follow their example. He chose not to, and the STRRT backed his approach.

The claim that Betsy DeVos “wrote,” or even had a role in, the Sununu back-to-school guidance simply doesn’t stand up to scrutiny.

GRADE:

Only the phrase “drafting done by the Department of Education” keeps Democrats from getting an “F.”

There’s a big debate brewing over local control of schools in the era of COVID-19. There’s no reason for Democrats to invent things to fight about.