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Judge won't dismiss lawsuit challenging Utah's ban on transgender athletes

Posted at 4:51 PM, Aug 10, 2022
and last updated 2022-08-10 23:28:23-04

SALT LAKE CITY — A judge has refused to dismiss a lawsuit challenging the state’s ban on transgender children playing school sports matching their gender identity.

The decision follows a lengthy hearing on Wednesday where lawyers in the case argued a series of motions, including motions to dismiss the lawsuit. The judge cautioned he was issuing a partial ruling with facts to sort out in litigation and more to come.

"It has the purpose and effect of creating a classification based on transgender status," 3rd District Court Judge Keith Kelly said of the law. "Furthermore, when I look at the statute as a whole it’s very clear the purpose of the statute is to exclude transgender girls from entirely competing or participating with other girls in high school sporting activities."

Judge Kelly said the law singles them out when others are free to compete and treats them "less favorably than other girls" and imposes a disparate treatment.

On Thursday, Judge Kelly will hold a separate hearing on whether or not to grant a preliminary injunction, blocking Utah’s ban from being enforced.

Wednesday’s hearing had some unique aspects. Judge Kelly imposed a confidentiality order to protect the identities of the children who are suing the state. In denying requests to allow cameras in the courtroom to film the legal arguments, the judge argued the children could be subjected to targeted harassment and attacks should their identities be made public.

As an extra precaution, Judge Kelly had the children and their families placed in a separate courtroom to listen to the proceedings while attorneys argued.

Three children and their families are suing the Utah High School Activities Association and the Jordan and Granite school districts, arguing the ban is discriminatory and unconstitutional.

“The law that Utah passed about transgender girls playing sports really scares me. It hurts to know that some people think I do not belong on my team or with my teammates. It feels like they wish I did not even exist. If I cannot be on the girls’ swim team in high school, I am not sure I will go to school at all. I might just try to do school at home instead. No one wants to be where they are not wanted and the last thing I want to do is draw attention to myself,” wrote Jane Noe, a 13-year-old swimmer, in a court filing.

The Utah State Legislature passed House Bill 11, which was amended in the final hours of the 2022 legislative session to include an all-out ban. Governor Spencer Cox vetoed the bill. The legislature later met in special session to override him.

The law has a trigger clause. If the ban is struck down by the courts, then Utah would create a special commission that would evaluate a transgender child’s eligibility to play school sports that match their gender identity.

In court documents, attorneys have said the law only affects four children who who identify as transgender out of 75,000 student athletes statewide.

In other rulings, Judge Kelly temporarily denied a request by attorneys for the UHSAA and the districts to obtain psychological records of the child plaintiffs. He did allow their doctors to submit information about diagnosis of gender dysphoria and the types of transition-related medication they may be on.