But a lot has happened in the past two weeks: Two other transgender girls filed a lawsuit challenging the new restrictions, and a federal judge ruled they had demonstrated they likely could prove that enforcement of the law amounted to unconstitutional sex-based discrimination.
While the judge weighs whether to issue a broader preliminary injunction, there is just one student-athlete in New Hampshire currently shielded from enforcement thanks to a temporary restraining order — that’s Parker Tirrell, 15, a sophomore at Plymouth Regional High School. The state’s top education official, Commissioner Frank Edelblut, has advised districts statewide that the law is “still applicable to all other students.”
Despite that guidance, the Kearsarge Regional school board voted 6-1 on Thursday to revert to policies that allow Jacques and other transgender girls on girls’ teams.
The board cited both Title IX, which federally prohibits sex-based discrimination in education, and a state law that prohibits discrimination in education on the basis of sex, gender identity, sexual orientation, and certain other characteristics. The board adopted standards set by the New Hampshire Interscholastic Athletic Association as the basis for determining which students to include on each team roster.
The board’s chairperson, Alison V. Mastin of Wilmot, said after the meeting that the board members had an in-depth discussion with an attorney about the evolving legal landscape and the interplay between state and federal law.
Maëlle Jacques, 16, a junior student-athlete at Kearsarge Regional High School who is transgender, speaks to her local school board in New London, N.H., on Thursday, Aug. 29, 2024, about her desire to continue playing girls’ sports. Steven Porter/Globe Staff
“We were given some new information that we did not have last time,” she said.
Mastin said the board weighed the competing risks, as school districts can face litigation whether they comply with the new state law or don’t.
“We decided that we needed to do what we feel is the right thing for the district and all the students,” she said, “and that’s why we stuck with Title IX.”
‘A win for neither side’
Superintendent John Fortney said the board made the best decision possible with the information available, but this situation is a symptom of a bigger problem, not a cause for celebration.
“Quite honestly, I think this is a win for neither side,” he said.
Fortney said the state legislature has put school districts in a tough spot by directing them to enforce laws that directly conflict with each other, which wastes taxpayer money and hurts kids.
“You’re wrong no matter what way you decide,” he said.
Governor Chris Sununu, a Republican, signed the new legislation into law in July, saying New Hampshire would join nearly half of US states that now bar transgender girls from girls’ sports.
At the same time, Sununu vetoed a bill that would have added carve-outs to the state’s anti-discrimination law to allow sex-separation in bathrooms, locker rooms, athletics, and detention facilities more broadly. His veto has drawn ire from conservatives who question his commitment to these policies.
Fortney’s comments about the conflicting laws add to those of New Hampshire school district leaders who are expressing uncertainty about how they should proceed in light of the dispute.
A spokesperson for the New Hampshire Department of Education referred questions Friday to the Department of Justice, and a DOJ spokesperson declined to comment on who would have authority to override the Kearsarge Regional school board’s decision and compel compliance with the new law.
“The law is only currently enjoined for one plaintiff and otherwise remains in effect statewide,” said DOJ spokesperson Michael S. Garrity. “Beyond that, the law is currently in litigation before the federal court, and we would not comment beyond our filings and arguments made in the court matter at this time.”
What the new law does
Attorney General John M. Formella has said the DOJ is committed to “vigorously defending this new law.”
Under the new state law, any student or any school harmed directly or indirectly as a result of a school’s knowing violation of the new law can file a lawsuit within two years to seek damages against that school.
The law requires public schools that serve students in fifth through 12th grades, as well as private schools whose students compete against public schools, to designate each of their interscholastic sports and club athletics teams as being for either males, females, or both.
The law, which bars males from participating in female-designated teams, defines a student’s sex based on their unamended birth certificate. If a birth certificate “does not appear to be” original or does not specify sex at birth, then the student “must provide other evidence indicating the student’s sex at the time of birth” and cover any costs associated with doing so.
Proponents of the legislation said it would protect safety and fairness for girls’ sports, a message that several people reiterated during a lengthy public comment period at Thursday night’s meeting.
Nancy Biederman of New Boston urged the school board to consider how other girls feel about competing against transgender athletes. She didn’t mention Jacques by name but did allude to her with specificity.
“Is anybody going to be concerned about the stigma that three girls from the most recent track meet will carry with them for the rest of their lives because you allowed a boy in your district to participate?” she said.
Biederman said three girls who would have otherwise placed first through third were instead bumped down one spot in the rankings because Kearsarge Regional allowed a transgender girl to compete and take first place.
“Allowing a boy to play on a girls’ sports team is now against the law in New Hampshire, and you as a school board need to follow that law,” she said. “It is imperative that you stand up for girls and stop letting boys take away their awards and opportunities in sports.”
Stephen Scaer of Nashua, N.H., who is running for New Hampshire Senate as a Republican, speaks to the Kearsarge Regional School District board in New London, N.H., on Thursday, Aug. 29, 2024, about his views on protecting fairness and safety in girls’ school sports. Steven Porter/Globe Staff
Stephen Scaer of Nashua, who is running for New Hampshire Senate as a Republican and who regularly travels throughout the area to protest against trans-inclusive policies, similarly urged the school board to follow the new state law to promote fairness.
“Although there are physiological differences among individuals, girls have a categorical disadvantage against boys in height, strength, and lung and heart capacity,” he said.
His wife, Beth Scaer of Nashua, told the board to consider the physical appearance of Parker Tirrell and Iris Turmelle, 14, the two plaintiffs who are represented by GLBTQ Legal Advocates & Defenders (GLAD) and the American Civil Liberties Union of New Hampshire in the pending lawsuit.
“They’re smaller kids,” she said, “and they don’t seem as threatening.”
Beth Scaer then urged people to look at Jacques, who was seated about 10 feet away, and told them to consider Jacques’physical appearance. The school board’s chairperson then stepped in and prevented Beth Scaer from saying anything further, citing a board policy against derogatory comments.
In an interview, Jacques told the Globe she disagrees with the arguments she has heard about safety and fairness and disputes the notion that she poses an exceptional risk or carries an unfair advantage.
“I have never injured someone in my 13 years playing soccer. I know plenty of my teammates — most of them — have injured someone,” she said.
“Plenty of my teammates are much stronger than me. I know that for a fact,” she added, noting that she stands 5-foot 10-inches tall. “While I am on the taller side … I’m not towering over most individuals on my team.”
Jacques and several of her supporters addressed the board, calling for her to be allowed back onto the field.
“I’m thrilled that the school board was able to revoke their prior decision and that all of the testimony that so many people, including myself, had an impact,” she said. “It’s a thrilling feeling to be able to play again.”
Although her team’s first soccer game of the season is Friday, Jacques said she doesn’t expect to actually get any time on the field. Under the NHIAA rules, a player isn’t game-eligible unless they participated in the practice that came before that game, and Jacques wasn’t allowed to participate in that practice.
Now that the school district has reversed course, Jacques said she expects to begin playing in games again next week.
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Steven Porter can be reached at [email protected]. Follow him @reporterporter.
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Publish date : 2024-08-30 10:02:00
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