Professional Documents
Culture Documents
State's Motion To Dismiss Transgender Lawsuit
State's Motion To Dismiss Transgender Lawsuit
Defendants.
TABLE OF CONTENTS
i
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Baker v. Carr,
369 U.S. 186 (1962) ...................................................................................................... 13, 15, 18
Goldwater v. Carter,
444 U.S. 996 (1979) .................................................................................................................. 14
Japan Whaling Ass’n v. Am. Cetacean Soc.,
478 U.S. 221 (1986) .................................................................................................................. 19
Juliana v. United States,
947 F.3d 1159 (9th Cir. 2020) .................................................................................................. 18
Lewis v. Casey,
518 U.S. 343 (1996) .................................................................................................................. 12
Nixon v. United States,
506 U.S. 224 (1992) .................................................................................................................. 14
Schneider v. Kissinger,
412 F.3d 190 (D.C. Cir. 2005) .................................................................................................. 14
Vieth v. Jubelirer,
541 U.S. 267 (2004) ............................................................................................................ 15, 16
Warth v. Seldin,
422 U.S. 490 (1975) ..................................................................................................................... 9
State Cases
ACLU of Utah v. State,
2020 UT 31, 467 P.3d 832 ........................................................................................................ 11
Alpine Homes, Inc. v. City of W. Jordan,
2017 UT 45, 424 P.3d 95 .......................................................................................................... 21
Baird v. State,
574 P.2d 713 ............................................................................................................................. 21
Brown v. Div. of Water Rights of Dept. of Natural Resources,
2010 UT 14 ......................................................................................................................... 21, 22
Butler v. Mediaport Ent. Inc.,
2022 UT App 37, 508 P.3d 619 .................................................................................................. 6
Cedar Mountain Envtl., Inc. v. Tooele Cnty. ex rel. Tooele Cnty. Comm'n,
2009 UT 48, 214 P.3d 95 .................................................................................................... 10, 20
ii
Gregory v. Shurtleff,
2013 UT 18, 299 P.3d 1098 ............................................................................................... passim
Haik v. Jones,
2018 UT 39, , 427 P.3d 1155 ...................................................................................................... 9
Jenkins v. State of Utah, et al.,
585 P.2d 442 (Utah 1978) ......................................................................................................... 10
Jenkins v. Swan,
675 P.2d 1145 (Utah 1983) ............................................................................................. 7, 10, 13
Mallory v. Brigham Young Univ.,
2014 UT 27, 332 P.3d 922 .......................................................................................................... 6
Matheson v. Ferry,
641 P.2d 674 (Utah 1982) ......................................................................................................... 20
Matter of Childers-Gray,
2021 UT 13, 487 P.3d 96 .......................................................................................................... 17
Provo City Corp. v Thompson,
2004 UT 14, ⁋ 9, 86 P.3d 735, 738 .............................................................................................. 8
Skokos v. Corradini,
900 P.2d 539 (Utah Ct. App. 1995) .................................................................................... 13, 14
Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist.,
2000 UT 87, 16 P.3d 533 .................................................................................................... 17, 18
State v. Mace,
921 P.2d 1372 (Utah 1996) ....................................................................................................... 11
State v. Roberts,
2015 UT 24, 345 P.3d 1226 ...................................................................................................... 10
Terracor v. Utah Bd. of State Lands and Forestry,
716 P.2d 796 (Utah 1986) ........................................................................................................... 7
Utah Chapter of Sierra Club v. Utah Air Quality Bd.,
2006 UT 74 ................................................................................................................. 6, 7, 10, 13
State Statutes
UTAH CODE § 53G-6-901(2) ........................................................................................................... 2
UTAH CODE § 53G-6-901(3) ........................................................................................................... 3
UTAH CODE § 53G-6-902(1)(b) .................................................................................................. 1, 2
UTAH CONST. art. VIII, §§ 1, 3, 5 ................................................................................................. 11
UTAH CONST., art. V § 1 ......................................................................................................... 13, 16
iii
State Rules
Utah R. Civ. P. 12(b)(1) .......................................................................................................... 4, 8, 9
Utah R. Civ. P. 23 ......................................................................................................................... 15
Utah R. Civ. P. 8(a)....................................................................................................................... 12
iv
Pursuant to Utah R. Civ. P. 12(b)(1), Defendants Utah High School Activities
Association (“UHSAA”), Granite School District, Jordan School District and Superintendents
Rich K. Nye and Anthony Godfrey bring this Motion to Dismiss Plaintiffs’ Second Amended
Complaint (the “Complaint”). Defendants are filing simultaneously with this Motion a motion to
INTRODUCTION
Defendants seek dismissal of the claims because the Court lacks subject matter jurisdiction.
Plaintiffs seek to enjoin Defendants’ enforcement of Part 9 of House Bill 11 (“HB11”) which
prohibits a student of the male sex from competing against another school on a team designated
for students of the female sex. See UTAH CODE § 53G-6-902(1)(b). Based on (1) Plaintiffs’
objection to production of their mental health records, and (2) Plaintiffs’ stipulation that they
would not assert individualized harms, this Court ruled that Plaintiffs’ claims are limited to the
purported psychological damage that transgender girls in general might suffer due to HB11. Order
Plaintiffs’ choice not to assert individualized harm is fatal to their lawsuit. Without
particularized harms, Plaintiffs cannot establish traditional standing under Utah law. Further,
Plaintiffs have not alleged “public interest” standing, but even if they had, they would not be able
to satisfy the requirements for this alternative to traditional standing for two reasons. First,
Plaintiffs cannot make the required showing that these claims are unlikely to be raised in the future
if they are denied standing because, as Plaintiffs allege, these issues impact all transgender girl
athletes. Second, public interest standing is inappropriate because the Utah Supreme Court has
warned against using public interest standing to litigate nonjusticiable political questions. These
1
issues are difficult political questions—governing bodies around the world struggle to find
manageable standards to answer these difficult policy questions which should be left to the
Legislature.
Even if Plaintiffs had not strategically painted themselves into a corner, the claims of
Plaintiffs Jenny Roe and Jane Noe should still be dismissed. Plaintiff Jenny Roe will be a senior
in high school this fall and intends to join and compete on the volleyball team. But Jenny is not
academically eligible to play volleyball on any Utah high school team in August 2022 because
Jenny failed more than one subject this past school year. Thus, the requested relief cannot redress
Jenny’s ability to play volleyball. And Jenny’s statement that she “may want” to try out for
basketball is too speculative—it does not satisfy the showing of a reasonable probability of future
injury. Similarly, Plaintiff Jane Noe she does not intend to try out for her high school swim team
until August 2023. With over 13 months until tryouts, there are many unknowns including
eligibility, athletic abilities, and even whether Jane will continue to want to join and compete on
the swim team. Thus, Jane also cannot show a reasonable probability of future injury and her
FACTS
1. HB11 does not allow “a student of the male sex [to] compete . . . with a team
designated for students of the female sex in an interscholastic athletic activity.” See UTAH CODE §
53G-6-902(1)(b).
school or LEA in competition against another school or LEA in an athletic or sporting activity.”
2
3. ‘“Sex’ means the biological, physical condition of being male or female,
determined by an individual’s genetics and anatomy at birth.” See UTAH CODE § 53G-6-901(3).
4. Jenny “is a 16-year-old girl who will be a senior in high school this fall in the
Granite School District.” Second Amend. Compl. ¶ 5. “Jenny is a transgender girl who plans to
join and compete on the girls’ varsity volleyball team in August 2022.” Id.
5. Jenny further contends the HB11 “puts a target on her back by sending a message
that it is okay to discriminate against transgender people. Id. ¶ 48. Jenny “believes she will face
more harassment, discrimination, or even violence because of this law in her daily life.” Id. When
Jenny was in junior high school, another student threatened her with violence because she is
transgender. Id. Jenny “believes that if [HB11] is allowed to go into effect, it will encourage people
6. Jenny “worries that if she cannot play volleyball with her teammates, she will feel
isolated and depressed and perform poorly at school. Jenny has felt the most healthy and happy
7. Jenny alleges that “[i]f the Ban goes into effect, it will cause Jenny to suffer
irreparable emotional, psychological, and developmental harm and will irreparably and negatively
8. Jenny is not eligible to compete on any Utah high school volleyball team during the
fall trimester because she received two failing grades last trimester. See Transcript (attached as
Exhibit 1).
3
9. USHAA administers and supervises interscholastic activities among Utah high
‘Cannot fail more than one subject in the preceding grading period….’” Id., SECTION 8:
Scholastic Rule A, p. 31. “A student who has failed to meet the minimum requirements set forth
shall be ineligible for participation in UHSAA activities throughout the next grading period….”
Id.
11. In Jenny’s Declaration filed in support of the Motion for Preliminary Injunction,
Jenny stated: “I may also want to play on the girls’ basketball team in the winter season of my
senior year.” Declaration of Jenny Roe in Support of Motion for Preliminary Injunction (“Jenny
Decl.”), ¶ 12.
12. “Plaintiff Jane Noe is a 13-year-old girl who will be in eighth grade this fall and
will attend high school in the Granite School District in 2023.” Id. ¶ 6. “Jane is a transgender girl
who plans to join and compete on her high school girls’ swim team in August 2023.” Id.
13. Jane alleges that her “health and well-being depend on being able to follow her
medically prescribed treatment, including living as a girl in all aspects of her life.” Id. ¶ 54.
14. Jane further alleges that “[i]t would be painful and humiliating for Jane to be forced
to be on a boys’ team and would also contradict her medical care. The Ban thus effectively denies
Jane the opportunity to participate in school sports at all. She will be prohibited from participating
in school sports and will be denied the numerous social, educational, and physical and emotional
1
Available at https://uhsaa.org/Publications/Handbook/Handbook.pdf
4
15. Jane alleges that “the Ban has undermined her confidence and made her fear for her
future.” Id. ¶ 60. She further alleges that “Jane knows she is banned from competing on the girls’
swim team when she starts high school, she may not attend school in person at all because the
16. Jane alleges that “[i]f the Ban goes into effect, it will cause Jane to suffer irreparable
emotional, psychological, and developmental harm and will irreparably and negatively affect her
17. “Plaintiff Jill Poe is a 14-year-old girl who will be in ninth grade this fall and will
attend high school in the Jordan School District.” Id. ¶ 7. “Jill is a transgender girl who plans to
join and compete on her high school girls’ cross-country team in June 2022 and girls’ track team
18. Jill alleges that “[i]f the Ban goes into effect, it will cause Jill to suffer irreparable
emotional, psychological, and developmental harm and will irreparably and negatively affect her
ARGUMENT
I. Motion to Dismiss Standard
Because the Defendants challenge Plaintiffs’ standing to bring this lawsuit, this motion
arises under Utah Rule of Civil Procedure 12(b)(1) as a motion to dismiss for lack of jurisdiction.
See, e.g., Gregory v. Shurtleff, 2013 UT 18, ¶ 9 (noting that “standing is a jurisdictional
requirement . . . .”). “As a procedural matter, a motion to dismiss under rule 12(b)(1) of the Utah
Rules of Civil Procedure is governed by the same standard of review as a rule 12(b)(6) motion.
Specifically, factual allegations are accepted as true and all reasonable inferences to be drawn from
those facts are considered in a light most favorable to the plaintiff.” Mallory v. Brigham Young
5
Univ., 2014 UT 27, ¶ 33 n. 1 (Stone, J., dissenting) (citations omitted). Based on this Court’s July
12 Order limiting evidence to the purported psychological damage that transgender girls in general
might suffer due to HB11, Defendants have filed simultaneously with this Motion, a motion to
strike the individualized allegations of harm from the Second Amended Complaint. Defendants
understand Plaintiffs’ objection to be against the production of any mental health records at any
point in this case and that the Order in Limine accordingly governs the presentation of evidence at
all stages of this lawsuit, including trial. Thus, the factual allegations to be considered for purposes
of this Motion are limited by the Court’s Order in Limine.2 See Butler v. Mediaport Ent. Inc., 2022
UT App 37, ¶ ⁋ 49, 57, 508 P.3d 619, 633, 634 (affirming order in limine excluding all damages
evidence based on Rule 26 disclosure inadequacy: “given that [defendant] therefore had no
evidence to support those counterclaims, we perceive no error in the court’s decision to dismiss
them summarily” and subsequently finding no error in granting summary judgment on that basis).
Accordingly, for purposes of this Motion to Dismiss, the Court should not consider the
In order for this Court to have jurisdiction, Plaintiffs must have standing. Utah Chapter of
Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ⁋ 17. This requirement “ensures ‘that courts
confine themselves to the resolution of those disputes most effectively resolved through the
judicial process’” and “prevents the ‘significant inroad on the representative form of government’
that would occur if courts cast themselves ‘in the role of supervising the coordinate branches of
2
Out of an abundance of caution, Defendants filed their Motion to Strike to ensure that the
Second Amended Complaint, which the Court reviews when deciding this Motion, conforms
with the developing nature of Plaintiffs’ claims.
6
government.’” Id. (quoting Terracor v. Utah Bd. of State Lands and Forestry, 716 P.2d 796, 798-
99 (Utah 1986)). There are two ways to establish standing under Utah law – “the traditional test
The threshold requirement of traditional standing requires a plaintiff to “show that he has
suffered a distinct and palpable injury that gives him a personal stake in the outcome of the legal
dispute.” Jenkins v. Swan, 675 P.2d 1145, 1148-49 (Utah 1983) (citations omitted). Plaintiffs
initially alleged that HB11 would cause Jenny, Jane, and Jill “to suffer irreparable emotional,
psychological, and developmental harm and will irreparably and negatively affect [their]
educational and social experience.” Second Amend. Compl. ¶¶ 49, 61, 73. However, because
Plaintiffs object to producing medical records that would speak to their individual emotional,
psychological, and developmental harm, they stipulated, and the Court ordered, that Plaintiffs are
precluded from introducing evidence that would establish a “distinct and palpable injury” that
would give them a personal stake in the outcome of the legal dispute. See Order in Limine dated
July 12, 2022.3 Rather, they may only introduce evidence of the general harms that any transgender
girl might experience by being precluded from playing sports on girls’ teams. Without evidence
of a distinct and palpable injury, they cannot meet the elements of traditional standing.
Plaintiffs may respond by asserting that they are also alleging academic, social, and
physical harms. Those concepts do appear in the Complaint. D24:17-19. But Plaintiffs do not
assert and cannot establish that these alleged injuries are traceable to HB11. See Provo City
3
The Plaintiffs so stipulated, and the Court entered the Order in Limine, in the context of a
discovery dispute regarding Plaintiffs’ medical records. Thus, the parties in that short hearing did
not prepare or present any arguments to the Court on the implications Plaintiffs’ stipulation has on
Plaintiffs’ standing, but they do so now in the context of this Motion to Dismiss.
7
Corp. v Thompson, 2004 UT 14, ⁋ 9, 86 P.3d 735, 738 (“In order to meet the basic requirements
of standing, a party must allege that he or she has suffered or will imminently suffer an injury
that is fairly traceable to the conduct at issue . . .”). Without evidence of a psychological or
emotional effect of HB11, any academic, social, or physical harms are harms that would flow
Plaintiff’s allegations appear to flow as follows: (1) HB11 causes them psychological and
emotional harm by prohibiting them from competing in inter-scholastic games in girls’ leagues;
(2) in light of that, they will choose to participate in neither a boys’ nor a girls’ league; (3) as a
The July 12 order removes link (1) of this chain. And without proof of psychological and
emotional harm from HB11’s bar, Plaintiffs are on the same footing as any other biological boy
who chooses not to compete in sports—they may suffer academic, social, or physical harms from
a loss of competition in sports, but these effects trace to personal decision, not HB11.
case may become moot even where “the parties appear to have had standing and a ripe
controversy when the case was filed in the district court.” Utah Transit Authority v. Local 382 of
Almalgamated Transit Union, 2012 UT 75, ¶ 14, 289 P.3d 582. A subsequent event moots the
case where “‘circumstances change so that the controversy is limited,’” as with acts occurring
“‘during the pendency of the proceedings’” that render the case “non-justiciable.” Id. (quoting
Navajo Nation v. State (In re Adoption of L.O.), 2012 UT 23, ¶ 8, 282 P.3d 977). That is another
way of looking at the justiciability problem here. Even if the Plaintiffs had standing when they
filed the case, they lost it as a result of the July 12 order—or, alternatively, their case was
8
mooted because “the relief requested” was rendered “impossible” because they could no longer
Because Plaintiffs are limited to arguing general harm to all transgender girls and thus
cannot meet the traditional standing requirement, the only possible means for Plaintiffs to meet
the threshold standing requirement is to demonstrate public interest standing. Plaintiffs have not
alleged public interest standing, and it is not the Defendants’ role to speculate on whether and on
what grounds Plaintiffs may wish to do so. Under the rules of civil procedure, it is the Plaintiffs’
responsibility to plead the grounds for their claims against the Defendants—including the
jurisdictional basis for them. See Utah R. Civ. P. 8(a) (requiring plaintiff to plead a “statement of
the claim showing that the party is entitled to relief”); see also Warth v. Seldin, 422 U.S. 490
(1975) (stating that a plaintiff must “clearly . . . allege facts demonstrating that he is a proper party
to invoke judicial resolution of the dispute”). Defendants thus cannot be given the responsibility
of pleading a basis for Plaintiffs’ claims, or to guess at what that basis may be in deciding how to
respond. The Court should not reach public interest standing for that reason. It should dismiss the
Complaint on the basis of the Plaintiffs’ inability to plead the particularized injury foreclosed by
The Court should also dismiss even if it were to evaluate public interest standing because
Plaintiffs cannot meet the elements of public interest standing. Although “it is the usual rule that
one must be personally adversely affected before he has standing to prosecute an action . . . it is
also true this Court may grant standing where matters of great public interest and societal impact
are concerned.” Gregory, 2013 UT 18, ¶ 12, 299 P.3d at 1102–03 (quoting Jenkins v. State, 585
P.2d 442, 443). Utah courts rarely invoke public interest standing, however, and “will not readily
9
relieve a plaintiff of the salutary requirement of showing a real and personal interest in the
dispute.” Id. ¶ 13 (quoting Jenkins, 675 P.2d at 1150). Public interest standing is a two-part
inquiry: “(1) is the plaintiff an appropriate party; and (2) does the dispute raise an issue of
significant public importance[?]” Id. ¶ 15 (quoting Cedar Mountain Envtl., Inc. v. Tooele Cnty. ex
rel. Tooele Cnty. Comm'n, 2009 UT 48, ¶ 15, 214 P.3d 95, 100). It is Plaintiffs’ burden to satisfy
this alternative basis of standing. State v. Roberts, 2015 UT 24, ¶ 50, 345 P.3d 1226, 1241 (citation
omitted). Plaintiffs cannot satisfy either element: Plaintiffs are not appropriate parties because they
cannot show that these issues will not likely be raised if Plaintiffs are denied standing, and
Plaintiffs cannot show that these issues are important in and of themselves because the issues
plaintiff must show an “interest necessary to effectively assist the court in developing and
reviewing all relevant legal and factual questions” and “that the issues are unlikely to be raised if
the party is denied standing.” Gregory, 2013 UT 18, ¶ 28 (quoting Sierra Club v, 2006 UT 74, ¶
36, 148 P.3d at 972). Regardless of whether Plaintiffs have sufficient interest to litigate these
issues, Plaintiffs are unable to demonstrate that these issues are unlikely to be raised in the future
Plaintiffs allege that HB11 will cause harm to all transgender girls that participate in
athletics by “contribut[ing] to negative physical and emotional health outcomes” and HB11
“directly conflicts with and interferes with their medical treatment for gender dysphoria, thereby
10
increasing their risk of suicide and other negative health outcomes.” Second Amend. Compl. ¶ 84.
As Plaintiffs allege, these harms affect all transgender girls that play sports. Such allegations of
general harm directly undermine the notion that these issues will not be raised if Plaintiffs do not
have standing. In other words, if HB11 harms all transgender girl athletes, then Plaintiffs cannot
show that another transgender student will not likely challenge the law in the future.
appropriate for [the Court] to await a litigant who may actually [allege] harm[] by such
application.” State v. Mace, 921 P.2d 1372, 1379 (Utah 1996). For example, in ACLU of Utah v.
State, the Utah Supreme Court denied public interest standing to advocacy organizations who
sought relief for prisoners who were at risk of contracting COVID-19. 2020 UT 31, ¶ 4, 467 P.3d
832, 833. No individual inmate was a plaintiff and the Court found that the advocacy organizations
failed to show that the issues would not likely be raised if they were denied standing. Id. While the
Court found public interest standing in Gregory, the Court reasoned that it was unlikely the issues
would be raised because “no other plaintiff ha[d] emerged in the years since the Bill’s passage.”
2013 UT 18, ¶ 30 (emphasis added). By contrast, Plaintiffs here filed the action a month before
the law went into effect. See Amend. Compl. As the law has only been in effect for several weeks,
it is more appropriate for the Court to wait for a transgender student in the future who can argue a
lacking merely as a result of Plaintiffs’ strategic decisions. Public interest standing is not an
alternative for those who could but choose not to satisfy traditional criteria. Plaintiffs seek relief
for all transgender girls based on general harm to all transgender girls, but Plaintiffs have not
11
brought this case as a class action on behalf of all similarly situated transgender girls. See Second
Amended Compl. Of course, even in class actions, named plaintiffs must still satisfy requirements
of individual harm. Cf. Lewis v. Casey, 518 U.S. 343, 357 (1996) (“[E]ven named plaintiffs who
represent a class must allege and show that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which they belong and which they
purport to represent.” (cleaned up)). Plaintiffs are in effect litigating this case as a class action
without the substantive and procedural protections afforded to class actions. See Utah R. Civ. P.
23.
limits of judicial power. Article VIII of the Utah Constitution confers on Utah courts the “judicial
power” to issue “writs” and to decide “cases.” UTAH CONST. art. VIII, §§ 1, 3, 5. The historical
understanding of that judicial power limited “private plaintiffs” to vindicate “private rights” while
“public rights” were left to “government representatives suing for the public in court.” Gregory,
2013 UT 18, ¶¶ 70, 90, 299 P.3d at 1126 (Lee, J., concurring in part and dissenting in part)
(concluding that “public interest standing” is incompatible with original understanding of judicial
power). “The requirement that a plaintiff have a personal stake in the outcome of a dispute is
intended to confine the courts to a role consistent with the separation of powers, and to limit the
jurisdiction of the courts to those disputes which are most efficiently and effectively resolved
through the judicial process.” See Jenkins, 675 P.2d at 1149 (citation omitted). Thus, public interest
standing was meant as a rare exception where a private plaintiff was unable to show traditional
standing and no other litigants would likely raise the important public issues. See id. at 1150. But
Plaintiffs’ inability to demonstrate traditional standing here is based on their own strategic
12
decision. Giving Plaintiffs the option to simply choose between traditional or public interest
standing eliminates any private-public distinction and the limitations of judicial power afforded by
the Constitution.
must also demonstrate that the issues “are of sufficient public importance in and of themselves.”
Sierra Club, 2006 UT 74, ¶ 39. “This requires the court to determine not only that the issues are
of a sufficient weight but also that they are not more appropriately addressed by another branch
of government pursuant to the political process.” Id. (emphasis added). This means that public
interest standing “should not be used by courts to engage in review of nonjusticiable political
Utah courts rely extensively on federal case law when interpreting and applying the
political question doctrine. See Skokos v. Corradini, 900 P.2d 539, 542 (Utah Ct. App. 1995). In
Baker v. Carr, 369 U.S. 186, 217 (1962), the United States Supreme Court outlined a six-prong
13
These determining factors are separated by the word “or.” Thus, “[t]o find a political question,
[Courts] need only conclude that one [of these] factor[s] is present, not all.” Schneider v.
The Baker criteria are informed by “prudential concerns calling for mutual respect among
the three branches of Government.” Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (Powell, J.,
concurring); see also Nixon v. United States, 506 U.S. 224, 252–53 (1993) (Souter, J., concurring)
(noting that applying the political question doctrine requires case-by-case attention to “prudential
concerns”). “The Utah Constitution explicitly establishes separation of powers between the
legislative, judicial, and executive branches at the state level.” Skokos, 900 P.2d at 542. Indeed,
the Constitution provides that none of the branches “shall exercise any functions appertaining to
either of the others, except in the cases herein expressly directed or permitted.” UTAH CONST., art.
V § 1 (emphasis added). “Courts must hold ‘strictly to an exercise and expression of [their]
delegated or innate power to interpret and adjudicate.’” Skokos, 900 P.2d at 541-42. Accordingly,
prudential concerns are particularly salient given the Utah Constitution’s strict demands that no
The present case involves both the welfare of transgender girls and the protection of
women’s sports for natal girls. This encompasses a myriad of policy considerations and political
issues that have just recently come to light with varying standards and policies developing. As
Plaintiffs’ expert witness wrote, “We live in a time of dramatic change; LGBT (Lesbian Gay
Bisexual Transsexual) rights have become the civil rights issue of our day.” Daniel E. Shumer &
Norman P. Spack, Paediatrics: Transgender Medicine: Long Term Outcomes from “the Dutch
Model,” 12(1) Nat’l R. Urol. 12, 13 (Jan. 2015). Following the Baker factors, these emerging issues
14
are political questions that should not serve as the basis for public interest standing: (1) there are
no manageable judicial standards to resolve these issues; (2) these issues demand specific policy
determinations; and (3) any determination disrespects the policy decisions of the Legislature.
Plaintiffs cannot satisfy the second factor of the Baker test, which requires “judicially
discoverable and manageable standards for resolving” the issues before the Court. 369 U.S. at 217.
To adjudicate these issues, “the Court’s inquiry necessarily proceeds to the point of deciding
whether the duty asserted can be judicially identified and its breach judicially determined, and
whether protection for the right asserted can be judicially molded.” Id. at 198. Where there are “no
judicially discernible and manageable standards for adjudicating,” the question is non-justiciable.
It is unsurprising that there are no judicially manageable standards here. Experts in these
answers to these difficult issues. Varying responses and standards have emerged. For example, the
federations across Olympic sports to include trans athletes in their own regulations” after the 2022
Beijing Winter Games.4 This moved the IOC away from its prior focus on measuring athletes’
4
See Matt Lavietes, International Olympic Committee issues new guidelines on transgender
athletes, N.B.C. (Nov. 16, 2021), https://www.nbcnews.com/nbc-out/out-news/international-
olympic-committee-issues-new-guidelines-transgender-athl-rcna5775; see also IOC Framework
on Fairness, Inclusion and Non-discrimination on the Basis of Gender Identity and Sex
Variations, INT’L OLYMPIC COMM.,
https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-
Inclusion-Non-discrimination-2021.pdf?_ga=2.61680430.346029375.1656697307-
328362936.1656697307.
15
testosterone levels to determine eligibility to participate in women’s sports. The International
Swimming Federation (“FINA”), which the IOC recognizes for administering international
competitions in aquatics, adopted a new policy in 2022 that prohibits transgender women from
competing alongside cisgender women unless they “have transitioned before age 12 and
athletes, according to the Human Rights Campaign[.]”5 The International Cycling Union (“UCI”)
adopting a similar 2.5 nanomoles/liter requirement to FINA’s.6 The International Rugby League
announced a total ban on transgender women’s participation in women’s rugby in June 2022.7 The
British Triathlon Federation stated, “Beginning in 2023, this federation will no longer allow
transgender women to participate in women’s sports; instead, there will be a Female category of
competition and an Open category, in which cisgender men, transgender women, and nonbinary
competitors may participate.”8 It is unlikely that the courts can develop manageable standards
5
See Jere Longman, Sport is Again Divided Over Inclusiveness and a Level Playing Field, N.Y.
TIMES (June 22, 2022), https://www.nytimes.com/2022/06/22/sports/olympics/transgender-
athletes-fina.html; Julie Kliegman, Understanding the Different Rules and Policies for
Transgender Athletes, SPORTS ILLUSTRATED (July 6, 2022), https://www.si.com/more-
sports/2022/07/06/transgender-athletes-bans-policies-ioc-ncaa; see also Policy on Eligibility for
the Men’s and Women’s Competition Categories, FINA (July 19, 2022),.
6
Id.; see also Memorandum on Eligibility Regulations for Transgender Athletes, UNION
CYCLISTE INTERNATIONALE (June 22, 2022),
https://assets.ctfassets.net/761l7gh5x5an/Et9v6Fyux9fWPDpKRGpY9/96949e5f7bbc8e34d5367
31c504ac96f/Modification_Transgender_Regulation_22_Juin_2022_ENG.pdf
7
Id.; see also statement on Transgender Participation in Women’s International Rugby League,
INT’L RUGBY LEAGUE (June 21, 2022), https://www.intrl.sport/news/statement-on-transgender-
particiption-in-women-s-international-rugby-league/.
8
Darreonna Davis, British Triathlon Latest to Limit Trans Atheltes—Here are the Major Sports
Enacting Similar Bans, FORBES (June 22, 2022),
16
The Utah Supreme Court urges “deference to existing remedies” fashioned by legislative
bodies, rather than judicially created remedies, out of “respect for separation of powers’
principles.” Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT
87, ¶ 24, 16 P.3d 533, 539. In the present case, Plaintiffs ask the judiciary to fashion a remedy that
and adjudicate whether natal males should be permitted to play on girls’ sports teams. Pls. Motion
for Prelim. Inj. at 29. But policies and standards vary significantly and are still developing around
the world; there are no judicially manageable standards to answer these questions.
Last year, the Utah Supreme Court extended its common law authority to adjudicate name
changes to cases involving sex changes. Matter of Childers-Gray, 2021 UT 13, ¶ 66, 487 P.3d 96,
115. The Court did so, however, within its limited authority to adjudicate in cases where common
law applies. “The money line here is this: The exercise of common-law authority, when not
abrogated by statute, neither runs afoul of the political question doctrine nor violates the
separation-of-powers requirements of article V, section 1.” Id. ¶ 68. There is no common law
principle permitting natal males to participate in girls’ sports or allowing courts to adjudicate
eligibility requirements. It would be imprudent for the Court to answer these political questions
The third factor in the Baker test deems it imprudent for courts to adjudicate where there
https://www.forbes.com/sites/darreonnadavis/2022/06/22/cycling-swimming-and-now-
rugbyhere-are-the-sports-that-imposed-bans-or-restrictions-on-transgender-
competitors/?sh=61394a9aa105.
17
nonjudicial discretion[.]” 369 U.S. at 217. The policy judgments presented in this case include
how to balance the welfare of transgender girls against the welfare of natal girls, student mental
health, and personal freedom. The Utah Supreme Court urges “caution” where “myriad policy
considerations” are at issue. Spackman, 2000 UT 87, ¶ 24, 16 P.3d at 539. “Because it is axiomatic
that the Constitution contemplates that democracy is the appropriate process for change, some
questions—even those existential in nature—are the province of the political branches.” Juliana
v. United States, 947 F.3d 1159, 1173 (9th Cir. 2020) (cleaned up). The Court is not well positioned
to determine which policies will be most effective in supporting natal girls and transgender girls,
without creating unintended harmful outcomes such as impairment of education and mental health
issues.
The fourth Baker factor cautions against “the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government[.]”369 U.S. at 217. Fundamentally, Plaintiffs’ argument is that the Utah Legislature
made the wrong policy decision when it allowed only natal girls to compete on girls’ school sports
teams. It is imprudent for Courts to step in to reverse legislative decisions on matters of special
public concern. “Public interest or importance may often cut against the propriety of the exercise
of judicial power. The matters of greatest societal interest—involving a grand, overarching balance
of important public policies—are beyond the capacity of the courts to resolve.” Gregory, 299 P.3d
at 1132 n.29 (Lee, J., concurring in part and dissenting in part). Issues surrounding transgender
athletes are hotly debated in the media and within our governing legislative bodies and a plethora
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The United States Supreme Court explained that “[t]he political question doctrine excludes
from judicial review those controversies which revolve around policy choices and value
determinations[.]” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986). The
issues here similarly involve important policy and value judgments regarding the treatment of
gender dysphoria, protecting girls’ sports from natal males, and fairness and integrity of female
sports. Utah’s Constitution does not answer the question of how to properly balance these
important interests; but it clearly defines the roles of the three branches of government, leaving
these types of policy decisions in the capable hands of the legislative and executive branches.
Striking down the Legislature’s regulation of school sports would disrespect the
Legislature’s constitutional role. “[T]here is no liberty, if the judiciary power be not separated from
the legislative and executive. Were it joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary control; for the judge would be then the legislator.” Montesquieu,
The Spirit of Laws, Loc. 2378 (Halcyon Press Ltd. Kindle Edition) (1752) (emphasis added). “The
purpose behind the separation of powers is to preserve the independence of each of the branches
powers.” Matheson v. Ferry, 641 P.2d 674, 681 (Utah 1982) (Howe, J., concurring). Courts must
be vigilant to exercise appropriate restraint and defer to the Legislature to prevent the erosion of
liberty.
In sum, Plaintiffs cannot establish public interest standing because these nonjusticiable
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IV. Jenny and Jane’s Claims Should Be Dismissed Because Their Alleged Injuries
Are Speculative
Even if Plaintiffs were not limited from arguing individualized harms, Jenny and Jane’s
claims should be dismissed because their alleged injuries are speculative. To have standing to
challenge the constitutionality of legislation a party must “(1) assert that it has been or will be
adversely affected by the [challenged] actions; (2) allege a causal relationship between the injury
to the party, the [challenged] actions and the relief requested; and, (3) request relief that is
substantially likely to redress the injury claimed.” Cedar, 2009 UT 48, ¶ 8 (cleaned up). Jenny and
A. Jenny is ineligible to play volleyball and her claim that she may want to try out
for basketball is too speculative to satisfy standing
Jenny’s claimed harms result from not being to compete on the girls’ volleyball team at her
high school. See Second Amend. Compl. ¶¶ 44-47. But Jenny is academically ineligible to play
volleyball on her high school team this fall. To be eligible to play sports, a student “[c]annot fail
more than one subject in the preceding grading period . . . .” See 2022-2023 USHAA Handbook,
SECTION 8: Scholastic Rule, p. 31.9 This last spring, Jenny failed more than one class. See
Transcript (attached at Exhibit 1). Thus, even if the Court strikes down HB11 as unconstitutional,
any alleged harms related to not being able to compete on the volleyball team will remain. Because
Jenny’s requested relief is not substantially likely to redress her alleged injury, the Court does not
have subject matter jurisdiction and her claims should be dismissed. See Alpine Homes, Inc. v. City
9
Available at https://uhsaa.org/Publications/Handbook/Handbook.pdf.
20
In Jenny’s declaration, she claims that she “may also want to play on the girls’ basketball
team in the winter season of [her] senior year.” See Jenny Decl. ¶ 12 (emphasis added). But this
allegation is too speculative to satisfy the demands of standing. “To invoke judicial power to
determine the validity of executive or legislative action, claimant must show that he has sustained
or is immediately in danger of sustaining a direct injury as a result of that action.” Baird v. State,
574 P.2d 713, 716. Jenny “must, at a minimum, set forth allegations establishing that a reasonable
probability, as opposed to a mere possibility, of future injury exists.” Brown v. Div. of Water Rights
Jenny does not allege in the Second Amended Complaint that she will be harmed by her
inability to play basketball. See Second Amend. Compl. Indeed, in her declaration, she does not
discuss basketball, but that she is simply considering playing her senior year. See Jenny Decl. ¶
12. This is not sufficient to show that there is a reasonable probability that she will actually tryout
for the team, that she will make the team, and that she is likely to compete. There is also reason to
question whether she will become eligible to play basketball given her ineligibility to play
volleyball. In her declaration, she stated: “If I cannot play with my [volleyball] team, I am worried
that I will not even want to go to classes or to school.” Id. Jenny’s claims must be dismissed
because she has failed to show that there is a reasonable probability that she will be harmed by an
B. Jane has not shown a reasonable probability of a future injury because she
could not compete for her high school team until August 2023
To establish standing based on allegations of a future injury, a plaintiff “must, at a
minimum, set forth allegations establishing that a reasonable probability, as opposed to a mere
possibility, of future injury exists.” Brown, 2010 UT 14, ¶ 19. Where, as here, plaintiff fails to
21
allege a reasonable probability of future injury, “the court must determine whether the plaintiff’s
allegations establish that a reasonable probability of future injury exists.” Id. Jane will not try out
for her high school swim team until August 2023. See Second Amend. Compl. ¶ 6. While the
Complaint states that Jane “loves competing in swim meets” and that “she is one of the smallest
girls on the team,” nowhere does it discuss Jane’s success at those meets and whether there is a
reasonable probability that she would actually make the high school team and compete for the high
school team on meets. Id. Indeed, with over 13 months before tryouts, even if she continued to
want to try out for the team, it is difficult to predict what her athletic abilities will be at that time,
including the probability that she will both be able to make and compete for her high school team,
and that she would meet any other eligibility requirements. Id. Jane’s claims must be dismissed
because she has not demonstrated a reasonable probability of a future injury based on an ability to
CONCLUSION
For the reasons stated above, the Court should dismiss Plaintiffs’ claims with prejudice.
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ELECTRONIC FILING CERTIFICATE
I certify that on this 13th day of July 2022, I caused to be served via electronic court filing
a true and correct copy of the foregoing DEFENDANTS’ 12(b)(1) MOTION TO DISMISS
John Mejia
Jason Groth
Valentina De Fex
ACLU OF UTAH FOUNDATION, INC.
[email protected]
[email protected]
[email protected]