Lawyers ask federal court to rule transgender sports law unconstitutional for all – not just the two plaintiffs

Two teens challenging New Hampshire's new law banning transgender girls from girls' sports teams, Parker Tirrell, third from left, and Iris Turmelle, sixth from left, pose with their families and attorneys in Concord, Monday, Aug. 19, after a judge granted an emergency request to allow one of the girls to play soccer while their lawsuit continues.

Two teens challenging New Hampshire's new law banning transgender girls from girls' sports teams, Parker Tirrell, third from left, and Iris Turmelle, sixth from left, pose with their families and attorneys in Concord, Monday, Aug. 19, after a judge granted an emergency request to allow one of the girls to play soccer while their lawsuit continues. Holly Ramer—AP photo, pool

By JEREMY MARGOLIS

Monitor staff

Published: 10-31-2024 1:19 PM

Modified: 10-31-2024 2:51 PM


Lawyers on Thursday asked a federal court to rule New Hampshire’s controversial transgender sports law unconstitutional for all students – not just their two clients – setting up a potentially precedent-setting court decision.

The new request – made via amending a complaint filed in August – is broader than the lawyers’ original one, which focused only on plaintiffs Parker Tirrell of Plymouth and  Iris Turmelle of Pembroke.

If the court determines the law is unconstitutional for all transgender girls in the state, the decision could have ramifications nationally. Previous federal court decisions restricting similar laws in other states have thus far – with one exception in Idaho – applied narrowly to specific transgender students, rather than the statewide application now requested in New Hampshire.

“That is not the way these cases have typically been filed in other states,” said Chris Erchull, an attorney with the GLBTQ Adovcates & Defenders who is representing the plaintiffs in the case.

Erchull and his team argue that the law being challenged – which bars transgender girls from playing on girls’ sports teams starting in fifth grade – violates both the Fourteenth Amendment of the U.S. Constitution and Title IX, which bars gender discrimination in educational settings. The law was signed by Gov. Chris Sununu in July and went into effect in August.

Federal Judge Landya McCafferty has already granted a preliminary injunction allowing Tirrell, 15, and Turmelle, 14, to continue playing on girls’ sports teams indefinitely. A third school district in the state, Kearsarge Regional, elected on its own to allow a transgender girl to continue playing on its girls’ soccer team, citing board members’ interpretation of a conflict between the new law and Title IX.

The Department of Education, however, notified school districts in August that court decisions in the case filed by Tirrell and Turmelle apply solely to their school districts, Pemi-Baker Regional and Pembroke, respectively.

Erchull said confusion surrounding the applicability of the court’s orders was part of why the legal team revised its complaint.

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“It became clear to us that the state wasn’t going to understand the judge’s orders as being any broader” than applying to Tirrell and Turmelle, Erchull said. 

A spokesperson for the attorney general’s office, which is defending the lawsuit, did not immediately respond to a request for comment.

In a court ruling granting Tirrell’s and Turmelle’s request for a preliminary injunction, Judge McCafferty appeared potentially sympathetic to the argument that the new law violated the constitution and Title IX for all tra, however she also relied on the specifics of the two plaintiffs’ cases in crafting her order.

Both girls take puberty-blocking treatment, according to the complaint.

The law “is unconstitutional as applied to Parker and Iris because barring them from playing girls’ sports does nothing to enhance fairness or safety in girls’ sports,” Judge McCafferty concluded, citing a Fourth Circuit court decision out of West Virginia that currently serves as the most significant precedent on this issue.

In that case, an appeals court ruled that a similar transgender sports law was unconstitutional as applied to a 13-year-old transgender girl who also takes puberty-blocking medication.

However, that court declined to rule on whether the law was broadly unconstitutional, as the lawyers in the New Hampshire case now request.

The legal team initially filed the lawsuit only on behalf of Tirrell and Turmelle because the law was set to go into effect within days of Tirrell’s sophomore soccer season getting underway, Erchull said.

Legal challenges can be made on either an “as applied” or “facial” basis. An “as applied” ruling, like the ones Judge McCafferty has made so far in this case, applies solely to the individual plaintiff or plaintiffs, whereas a “facial” ruling applies to the constitutionality of the law broadly.

Legal challenges to transgender sports laws in other states have generally been filed on “as applied” bases in part because of how few transgender girls wish to play on girls’ sports teams.

“The numbers are so small that it’s basically been unnecessary to seek broader relief in these cases,” Erchull said.

In New Hampshire, three transgender girls – Tirrell, Turmelle, and a soccer player at Kearsarge Regional High School – have publicly expressed a desire to play on girls’ teams.

The ruling in Idaho, which initially applied facially, was later revised to apply solely to the plaintiff, a student at Boise State University. The state of Idaho requested earlier this year that the U.S. Supreme Court review it.

Jeremy Margolis can be contacted at jmargolis@cmonitor.com.