Advocacy Group Files Brief Supporting Ban on Biological Males in Female Athletics

The Arizona State Capitol in Phoenix on Nov. 7, 2020. Olivier Touron/AFP via Getty Images

Advocacy group America First Legal (AFL) submitted a brief to an appeals court in support of Arizona’s law protecting women and girls’ sports from the inclusion of biological males.

Arizona’s Save Women’s Sports Act, passed in March 2022, bans biological males from playing in women and girls’ sports teams at public schools. In April 2023, two minor biological males and their families filed a lawsuit challenging the act, stating that as they used puberty blockers and have not undergone the usual male development, they wouldn’t have any male athletic advantage.

They insist that the act violates the Equal Protection Clause of the 14th Amendment, Title IX, and the Americans with Disabilities Act.

On June 30, AFL filed a motion to intervene on behalf of women’s organization Arizona Women of Action as well as three parents whose daughters play sports on girls’ teams in school.

On July 20, the district court issued a preliminary injunction which ordered that the two plaintiffs be allowed to play on the girls’ sports teams.

On Sept. 15, AFL filed a “friend of the court” brief in the 9th Circuit Court of Appeals to defend the Save Women’s Sports Act.

The brief argued that the district court made an error when deciding that it need not show deference to the Arizona Legislature’s findings about the issue of allowing biological males to take part in girls’ sports.

According to the brief (pdf), the state Legislature made the following determinations:

• A human being is either a male or a female with respect to biological sex.
• An individual’s sex is determined at fertilization and revealed at birth.
• Biological differences between males and females are determined genetically during embryonic development.
• There are “inherent differences” between men and women.
• Boys were found to score higher than girls when it came to cardiovascular endurance, muscular strength, muscular endurance, and speed/agility in studies among 6-year-olds.
• Males also have “a larger body size with more skeletal muscle mass, a lower percentage of body fat, and greater maximal delivery of anaerobic and aerobic energy.”
• There is a “sports performance gap” between males and females.

The brief asked the 9th Circuit Court to reverse the district court’s decision regarding the preliminary injunction.

Differences Between Boys and Girls

In a statement, AFL senior counsel James Rogers said the Save Women’s Sports Act will ensure “girls have a chance to play on their own teams without having to worry about getting injured by opponents with clear physical advantages, and without having to worry about biological males in the locker room.”

“The amicus brief filed by America First Legal makes these common sense points, and provides real examples of when girls in Arizona have been forced to compete against biological males. America First Legal will continue to fight to protect girls from the tyranny of dangerous ideologies.”

The AFL brief argued that the district court’s preliminary injunction against the Save Women’s Sports Act was largely driven by its claim that there are only “small differences” between prepubertal biological boys and girls.

“These statements by the district court completely mischaracterized the evidence before it and ignored the Arizona legislature’s factual findings, which were entitled to deference,” it said while citing studies showing athletic differences between the two demographics.

It detailed an Australian study which showed that 9-year-old boys were faster over short sprints and 1-mile running and could jump farther than 9-year-old girls. The boys also performed 33 percent more pushups in 30 seconds and had a 13.8 percent stronger grip.

“Pre-pubertal biological males have an athletic performance advantage that, at its best, is 33 percent higher than pre-pubertal biological females and, even at its worst, is nearly 10 percent higher,” the brief said.

Other States Passing Similar Laws

Advocacy group Alliance Defending Freedom (ADF) has also filed a friend of the court brief, asking that the 9th Circuit uphold Arizona’s Save Women’s Sports Act.

“Women deserve to compete on a fair and level playing field. As more women continue to lose to men, lawmakers are acting to preserve equal opportunities, biological reality, and common sense,” John Bursch, ADF senior counsel, said in a statement.

“Many young women across the country are facing the demoralizing reality of losing to male athletes who have natural physical advantages—advantages that can’t be overcome by similar training.”

In addition to Arizona, several other states have taken similar action to protect female sports from the incursion of biological males.

In May, Alabama’s Republican Gov. Kay Ivey prohibited male participation in female college athletic teams.

In June, Texas’ Republican Gov. Greg Abbott also signed into law legislation that banned biological males who identify as female from competing in women’s collegiate sports. In 2021, Mr. Abbott had prohibited transgender participation in female sports in K–12 schools.

Earlier in April, the U.S. House of Representatives passed legislation prohibiting taxpayer-funded institutions from allowing transgender athletes to take part in female sports in schools.