Utah’s law banning transgender girls from competing in school sports is back in court.
A judge blocked the law from taking effect in 2022. Now, attorneys representing transgender students argue the state quit complying with the court’s injunction because of President Donald Trump’s February executive order that attempts to bar transgender girls from competing in school sports.
In an April 30 hearing that lasted more than three hours, Third District Court Judge Keith Kelly listened to arguments over whether the state violated the injunction and should be sanctioned.
In the state’s motion to dismiss filed Feb. 26, the Utah High School Activities Association admitted that it changed its rules to put a blanket ban on transgender girls competing in girls’ sports. However, the rule change does not appear to have been publicly announced outside of the motion.
To Amy Whelan, the attorney representing the plaintiffs, that outright ban contravened the court’s injunction.
“UHSAA argues that contempt is not warranted because the president’s executive order supposedly justified these actions,” Whelan said. “Utah law and federal law are very clear that a party cannot challenge a court's order by violating it.”
If, Whelan argued, UHSAA believed it no longer needed to follow the injunction, it should have gone through the courts to figure things out. Instead, UHSAA decided for itself that the executive order superseded the injunction.
Additionally, lawyers on both sides alluded to a situation in February, days after Trump’s declaration, where a Utah transgender athlete was barred from competing in response to the presidential action. The attorneys were vague and sealed certain court records to withhold the identities of minors represented in the case.
Whelan said the state and UHSAA are acting like Trump’s executive order has the same force as federal law, which she said it does not.
“This argument is so fundamentally wrong that it is surprising to even see it on paper. Congress makes laws and judges interpret those laws. This is not controversial,” Whelan said. “Yet, according to defendants, the executive branch has the ultimate power to interpret Title IX, even if that interpretation contradicts judicial decisions.”
While the president’s executive order hasn’t been federally challenged in Utah, it has been in other states, including Minnesota. Other states, like Maine, have defied it. In response, the U.S. Attorney General’s Office sued Maine and has withheld federal education funds.
Minnesota and Maine never passed a state law prohibiting transgender athletes from competing in school sports, and therefore, a judge hasn’t weighed in on the issue. Whereas Utah did pass a law, and a judge decided it couldn’t be enforced.
Keith Barlow, the assistant attorney general of Utah, argued on behalf of UHSAA that all it did was comply with President Trump. In his argument, that does not mean the association violated the court’s order. UHSAA is not allowed to enforce a state law to ban transgender girls from competition, and Barlow argued UHSAA never did that. Additionally, he said the executive order was not a part of the equation when the injunction was issued.
“There's never been a violation of the injunctive order,” Barlow concluded. “It doesn't pertain to this situation.”
Barlow said the injunction doesn’t mean the state has to let transgender girls compete. He also argued that school districts face significant harm if they violate the guidance from the White House because they could lose federal funding.
“The association had 36 to 48 hours to make a very pertinent decision,” Barlow said.
Whelan called UHSAA’s logic “a distinction without a difference.” The association, she said, interpreted the executive order and the state’s paused ban as doing the same thing.
Judge Kelly issued no ruling and said he needed more information from the parties before making a decision, specifically about who bears the burden of proof.
“It's obviously a very significant issue that the plaintiffs have raised,” Kelly noted.
The judge acknowledged that it was an unprecedented situation that was rapidly evolving.
After both parties submit their briefs in May, Kelly said he would rule on whether the UHSAA was in contempt of court and should be sanctioned.
Another issue that was not addressed during the hearing was the state’s motion to dismiss the case entirely, arguing it is moot because of the executive order. A hearing on the motion has been scheduled for June 2.
