SALT LAKE CITY — The state of Utah is asking a judge to dismiss a lawsuit challenging Utah's ban on transgender girls playing school sports that match their gender identity.
"Plaintiffs are not in a position to allege any particularized harm arising from the application of HB11 to them, or to identify any particularized manner in which the law is alleged to infringe their constitutional rights," former Utah Supreme Court Justice Thomas Lee, who has been hired by the state to represent it in the case, wrote in a filing late Wednesday.
Three transgender girls and their families are suing the state, arguing the legislature's bill is unconstitutional and violates their rights.
In its response to the lawsuit, the state argued the childrens' rights are not being violated.
"Transgender girls are not 'outright ban[ned]'... from competing in high school sports. They can fully compete in the sports that match their biological sex or participate with a girls team in everything but games or competitions. And the differing treatment of biological girls and transgender girls is 'rooted in inherent differences between the sexes,'" Lee wrote. "Biological girls were not born boys. Transgender girls were. And even if transgender girls have undergone puberty blocking or hormone therapy, they still maintain and develop biological differences that are an advantage on the playing field. Try as one might, human beings cannot entirely shake their biology."
The legislature earlier this year passed a bill that prohibits transgender girls from participating in school sports that match their gender identity. Governor Spencer Cox vetoed the bill and the legislature met in a special session to override him. To date, there are believed to be only four girls out of thousands of student athletes across Utah the law would impact.
Built into the law is a trigger mechanism. If the courts overturn the ban, a special commission would be created to evaluate a potential transgender student athlete's eligibility.
But Lee argued for the state that the law is constitutional.
"The reasons listed above are common-sense and important government objectives: providing equality for girls, protecting them from the increased risk of physical harm, correcting past discrimination, providing them meaningful opportunities, and maintaining the integrity of girls’ high school sports. And prohibiting biological boys from competing in girls’ athletics substantially advances these interests," he wrote.
In an order issued Tuesday, Judge Keith Kelly prohibited the plaintiffs from introducing evidence of the harms caused to them by the passage of House Bill 11. However, they can introduce some evidence of the impact to transgender girls of being excluded from competing on girls sports teams.
Judge Kelly has scheduled an August hearing to decide whether or not to grant a preliminary injunction, blocking the law from being enforced. In a sign the case is ultimately headed to the state's top court, the plaintiffs are being represented by former Utah Supreme Court justices — Deno Himonas and Christine Durham, with support from LGBTQ rights groups.
Read the state's filing here:
