Key Points:

• Attorney Rachel Berg drops lawsuit over Arizona’s transgender sports law

• Berg believes a blanket ban is illegal, despite Supreme Court ruling

• Republican lawmakers propose tightening the 2022 law on the November ballot

An attorney is dropping her challenge against an Arizona law prohibiting the participation of transgender girls in girls’ sports. 

Rachel Berg said Tuesday she still believes that Arizona’s blanket ban is illegal, even following last week’s ruling by the U.S. Supreme Court upholding similar restrictions in Idaho and West Virginia. She said there are issues in the case here which were not addressed by the nation’s high court.

But Berg told Capitol Media Services that the one remaining plaintiff in the case — a transgender girl headed to high school after attending Kyrene Aprende Middle School in the Kyrene Elementary School District — has decided that she is done pursuing her claim.

“This case was filed over three years ago,” Berg said. And she said that this kind of multi-year federal lawsuit “can be particularly grueling for young people.”

“So our client has decided for personal reasons that she does not want to continue with the litigation,” Berg said.

State schools chief Tom Horne hailed the decision as “a victory for girl athletes and for common sense.”

“There had been numerous articles about girls who worked hard on their sports, hoping to make the team, or even get a college scholarship or compete for the Olympics,” Horne said in a prepared statement. “Then they had to compete with a biological boy who was bigger, stronger and faster from birth.”

All that, he said, resulted in “shattered dreams” when they could not compete.

“They no longer need to fear those outcomes,” Horne said.

Berg, however, said she believes there is still a legal path forward should any other transgender girl choose to try to participate in girls’ sports.

In its ruling last week, the nation’s high court upheld laws in the other two states limiting participation in girls’ sports to those born biologically female. The justices said those kinds of statutes do not violate equal protection requirements.

Arizona approved a similar law in 2022.

In this case, however, Berg, an attorney with the National Center for LGBTQ Rights, did not challenge the law itself.

Instead, she argued that the statute here could not be applied to the individual plaintiffs — there originally were two — because they had either not gone through puberty or were taking puberty blockers. That, Berg argued, meant they had no inherent advantage over those who were born female.

U.S. District Court Judge Jennifer Zipps agreed, ordering the state and the schools to allow them to play. One attended The Gregory School in Tucson but dropped out of the case after she graduated, leaving only the plaintiff who had attended Aprende Middle School.

That decision was upheld in 2024 by the 9th Circuit Court of Appeals which concluded that Horne, a defendant in the case, had not provided legitimate reasons to say the 2022 law must be applied and that the two transgender girls must be excluded from girls’ sports.

Then came last week’s U.S. Supreme Court decision about the Idaho and West Virginia laws — and, Berg said, the request by her client to dismiss the case “without prejudice,” meaning, strictly speaking, it could be refiled.

“This isn’t the last word on this issue,” Berg said. “There’s still pathways forward to challenge these types of laws that the Supreme Court didn’t address.”

One of those issues not mentioned by the Supreme Court is whether such laws violate the Americans with Disabilities Act. Berg has said that transgender girls suffer from “gender dysphoria,” a disconnect between how individuals identify themselves and the gender they are assigned at birth.

Horne, however, has scoffed at those claims.

He said that every transgender person could be found to be dealing with gender dysphoria. And the schools chief said the justices would never allow such a claim to overturn their basic ruling saying that states are free under that law to define “sex” as “biological sex,” meaning the sex assigned at birth — and not in the broader sense of how athletes identify themselves.

Berg said there are other potential claims, though she did not disclose what they are.

Any new or renewed lawsuit also might have to deal with a changed law in Arizona.

Republican lawmakers have put a measure on the November ballot to tighten up some of what is in the 2022 law, as well as add new restrictions on things like allowing transgender girls — identified in the proposal as those born biologically male — to use bathrooms and locker rooms reserved for girls.