Two transgender girls will get to play on girls’ teams, at least for the time being.

In a brief order Monday, the 9th U.S. Circuit Court of Appeals rejected separate bids by Republican legislative leaders and state schools chief Tom Horne to delay the effect of an order issued last month by U.S. District Court Judge Jennifer Zipps blocking the state from enforcing its 2022 ban on transgender girls from playing with and against other girls.

That most immediately means that the girls will be able to participate in girls’ sports as this new school year begins, precisely what Horne, Senate President Warren Petersen and House Speaker Ben Toma had sought to prevent by seeking a stay of Zipps’ order. In fact, they argued to the appellate judges that, absent their intervention, one of the girls, an 11-year-old student at Kyrene Aprende Middle School, would participate in a cross-country competition on Monday.

The appellate judges apparently were not impressed by the arguments, turning down the requests for a delay in the ruling and instead setting a schedule for the attorneys for both the challengers and the affected girls to file legal briefs. And that means the court will not even consider their arguments until at least November, if not later.

Horne, reacting to Monday’s order, said he was not alarmed.

He pointed out that, strictly speaking, the litigation affects only these two transgender girls whose bid to participate in girls’ sports was brought in federal court by the National Center for Lesbian Rights, the one attending school in the Kyrene district and the other a 15-year who is a student at The Gregory School in Tucson. While that is a private school, it is affected by the 2022 law because it participates in Arizona Interscholastic Association, which allows its students to participate in interscholastic sports with other schools.

But Horne told Capitol Media Services he needs to battle this particular lawsuit because he’s sure the legal fights won’t stop here.

“My view is that this is a first step towards letting males play in female sports in general,” he said.

“So this is a long-term fight,” he continued. “And I think it’s as important enough issue that we’ll win it in the U.S. Supreme Court.

Petersen was critical of the refusal of the appellate judges to step in and allow enforcement of the law.

“Bad rulings like this are just another reminder why the 9th Circuit is the most radical and overturned in the nation,” said the Gilbert Republican. In fact, the 6^th U.S. Circuit Court of Appeals, with a reversal rate of 81.5%, is the most reversed U.S. appellate court in the land since 2007, according to Ballotpedia. The 9^th Circuit comes in second in that time span with an 80% reversal rate.

A spokesman for Toma said he is “disappointed” by Monday’s ruling, saying the Peoria Republican is evaluating his next steps.

The 2022 law requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And, more to the point, it specifically says that teams designated for women or girls “may not be open to students of the male sex.”

In her ruling last month, Zipps, a 2011 appointee of President Obama, rejected claims by Horne and the legislative leaders that it would be unfair to allow those who were born as males to participate against females. The judge said the evidence Horne presented claiming that prepubescent transgender girls are stronger does not hold up under scrutiny.

Zipps also said that the 2022 law violates Title IX, a federal law that bars discrimination based on sex in educational opportunities. She said it deprives transgender girls “the benefits of sports programs and activities that their non-transgender classmates enjoy.”

And perhaps the most significant, the judge said the two girls who filed suit, who otherwise would be participating this new school year in sports, would suffer irreparable harm.

In seeking to stay the order, Horne argued just the opposite. He said that allowing Jane Doe, the transgender girl attending school in the Kryene district, to compete in cross-country events with other girls would not be fair to them.

“Unless Doe finishes the race behind every biological girl participating in the race, Doe’s participation will necessarily displace a biological girl from finishing in a higher-ranked position,” the schools chief argued. “Those biological girls will be irreparably harmed in the absence of a stay.”

The attorney for Petersen and Toma had their own arguments, including what he said is the right of state legislators to set public policy and adopt laws like the one challenged here.

“Permitting a single transgender-female athlete to participate on girls’ teams permits and prolongs a continuing violation of law,” wrote John Sauer.

“The act, as a duly enacted law adopted by Arizona’s elected representatives, is itself a clear and authoritative declaration of the public interest in Arizona,” he continued. “The district court erred by disregarding these public interests.”

In her extensive ruling last month, Zipps relied heavily on the concept that transgender girls are, in fact, girls.

She acknowledged that children are “assigned” a sex at birth which generally matches physiology. But the judge said that is different than “gender identity.”

“For a transgender person, that initial designation does not match the person’s gender identity,” Zipps said. She also said that “gender dysphoria” – the distress due to incongruence between the person’s gender identity and assigned sex – is highly treatable.

“Attempts to ‘cure’ transgender individuals by forcing their gender identity into alignment with their birth sex are harmful and ineffective,” Zipps wrote. And the judge said efforts like the 2022 law to deny transgender girls the opportunity to participate in sports with other girls – and she does consider the plaintiffs to be girls – can be harmful, citing high rates of attempted suicide in the transgender community.