By PAULA TRACY, InDepthNH.org

CONCORD – A recently signed law barring transgender girls from participating in public school sports is being challenged in U.S. district court. Two students who will return to school in the fall argue that the law is a violation of their constitutional rights.

This issue, raised by the passage of House Bill 1205 (https://www.gencourt.state.nh.us/bill_status/billinfo.aspx?id=1501&inflect=2) and signed by Republican Governor Chris Sununu, is currently being considered by U.S. District Judge Landya McCafferty for the District of New Hampshire.

On Tuesday, the judge extended for two weeks an Aug. 22 temporary restraining order against the Pemi Baker Regional School District in Plymouth to allow Parker Tirrell, a second-grader there, to practice and participate on the girls’ soccer team while she decides on further and broader action and perhaps a trial before a single judge in the fall.

The Plymouth girls’ junior varsity soccer team will play its first game against Merrimack Valley Regional High School on August 30 and has been practicing for a week. Classes there began on Monday.

McCafferty concluded that Tirrell was likely to succeed on the grounds that, among other things, expulsion would cause her irreparable harm and would not redress her continued participation in sports. In addition, both she and co-plaintiff Iris Turmelle, another transgender high school student, had taken puberty blockers that gave them no competitive advantage in sports and that there was no advantage.

However, the new law does not exclude those who have taken such puberty blockers.

Lawyers for the schools have not yet taken a position for or against the measure, but one of them said Tuesday that the issue puts districts in a “difficult position” because they must comply with federal Title IX law while also following the guidance of the state Department of Education, which has now issued orders barring trans girls from participating in girls’ team sports.

Some critics say there are few transgender girls in the state who are eligible and restricted, and that this is part of an effort by conservatives nationally to prevent what some see as an unfair advantage.

Attorneys for Tirrell and Iris Turmelle, who plans to play on Pembroke’s track and field team this winter, argue that the new law violates their rights under the Equal Protection Clause of the 14th Amendment to the United States Constitution and Title IX of the Education Amendments of 1972.

But the state’s lawyers argue that the law is intended to protect girls on their sports teams from transgender youth who could be stronger and more powerful, injure them and outrank them for scholarships and spots on the teams.

Attorney General John Formella said in a press release, “We appreciate the court taking the time to hear all of the arguments presented today. The court has extended the temporary restraining order for 14 days while the judge considers her decision. We will continue to vigorously defend this new law and will determine next steps once the court issues its order.”

House Bill 1205, which was hotly debated in hearings and on the floor of both chambers, passed the House by a narrow vote of 189 to 182 on March 21 and the Senate by a vote of 13 to 10 on May 16.

The bill, sponsored by state Rep. Louise Andrus (R-Salisbury), would require only girls whose birth certificates identify them as female to compete on girls’ sports teams in public schools in grades 5 through 12 and would require all girls to present a birth certificate.

However, “other unspecified evidence” is required to be considered proof of a character’s gender.

Opponents say this could include genital examinations, while supporters say it does not.

Proponents claimed that allowing biological males to participate in women’s sports was not physically fair competition and could be dangerous for female athletes.

But opponents, including the state’s largest teachers union, say it will exclude students from sports that can help develop a sense of belonging that is crucial to a successful life. And some fear that people who suffer from “gender dysphoria” are already marginalized and more prone to suicide.

Transgender rights groups say that by excluding this very small population, they are bullying and stigmatizing transgender girls, which can cause lasting damage to their self-esteem and ability to thrive. They said this view is also supported by doctors who tell them to live like girls.

However, some doctors have a different opinion.

After signing the bill, Sununu issued a statement pointing out that Republicans and Democrats passed legislation to prevent gender discrimination in 2018 “because, as I said then, it is unacceptable and runs counter to the spirit of New Hampshire, ‘Live Free or Die.’ That remains true today.”

Sununu said, “Charged political statements have muddled the discussion and distracted from the two main factors that all parents must consider: safety and justice for their children. These two factors were my primary consideration in reviewing these bills.”

He said HB 1205 ensures fairness and safety in women’s sports by maintaining integrity and competitive balance in athletic competitions.

“With this widely supported move, New Hampshire joins nearly half of all U.S. states taking this action,” he said.

The governor called it a solution that reflects the values ​​of parents across the state.

“The vast majority of Granite Staters share this approach – because it is fair, balanced and free of political considerations. By taking these actions, we continue to uphold the principles of safety, fairness and common sense for all of our citizens,” Sununu said.

The law went into effect on August 18, and a number of groups, including GLAD Legal Advocates & Defenders for the LGBTQ community and the New Hampshire chapter of the American Civil Liberties Union, both of which testified against the law, filed suit against the state just hours before football practice began at PRHS.

Parker Tirrell’s family said they received notice from the school district that Parker would not be able to resume his duties due to the new law, but did not take a position on the matter in court.

Judge McCafferty was asked to grant a temporary restraining order to allow Tirrell to begin training, which she granted on August 22, prohibiting the school from forbidding her from training.

The narrow injunction applies only to Tirrell. The other plaintiff, Iris Turmelle, will not need such an intervention until track practice begins on December 2, McCafferty was told.

Chris Erchull, senior counsel at GLAD, urged McCafferty to make a quick decision on the injunction, saying he hopes it will happen within a few days.

He argued that Iris Turmelle could suffer irreparable harm if she returns to school next week and provided additional facts to support the injury if she is told she cannot participate in sports.

State Attorney Michael DeGrandis said the plaintiffs have failed to explain why they cannot be accommodated by playing on other teams, from co-ed teams to unified sports teams. He said it is the state that suffers.

He said he was not sure the state would have experts available for an expedited trial in the fall if it came to that. But Erchull said the plaintiffs were prepared to appear if and when the court required them.

Both girls and their families attended the two-hour hearing Tuesday morning with their attorney. Outside, Erchull said he felt the judge knew what was at stake and would move expeditiously.

“Ultimately, we want a declaration from this court that this law is unconstitutional,” Erchull said. “It could also apply more generally,” and he noted that he had asked the judge to do so.

“I know that school districts are really in a bind because they understand that students, including transgender students, have rights that are protected by Title IX, and they also understand that there is a new state law that they have to enforce … And I think that’s a really difficult position for school districts,” Erchull said.

“As soon as Iris starts school next week, she will suffer harm because of the impact of this law. She has no guarantee that she will be able to participate in school sports this year, and in fact, she has been told the opposite by the state and her school district. And so she will start school next week… under different conditions than the other students, and that will affect her integration into the school community. And I think that is a very real harm that occurs immediately. Nevertheless, I am confident that the court will grant the motion for a preliminary injunction for the sports that Iris wants to play,” Erchull said.