By Scott Merrill
New Hampshire’s Fairness in Women’s Sports Act (HB 1205) feels anything but fair for Iris Turmelle, 14, and Parker Tirrell, 15. The two transgender high school girls filed a lawsuit in August against state officials to stop the enforcement of the law which would prevent them from participating on their high school’s girls’ sports teams.
Turmelle’s mother, Amy Manzelli, an environmental law attorney, says when she informed her daughter that Governor Sununu signed HB 1205 in July, her daughter’s immediate reaction was determination.
“Iris said to me, ‘We are going to fight it, right?’” says Manzelli. “That’s how her spirit is built.”
HB 1205, which won near-unanimous approval from Republicans in both the House and Senate this year, designates athletics by sex and prohibits students assigned male at birth from participating in female athletics. Currently, New Hampshire is the only New England state with a law of this type.
As of September 1, the Movement Advancement Project, which conducts research and policy analysis to promote LGBTQ+ rights, reports 26 states that have bans on transgender students participating in sports consistent with their gender identity.
The number of bills prohibiting transgender girls from participating on girls’ sports teams introduced by state legislatures around the country grew from 29 in 2022 to 72 in 2023, according to the Equality Federation.
Tirrell and Turmelle, who are joined by their families in the lawsuit, filed the suit in the US District Court for the District of New Hampshire and named multiple state and local officials as defendants, including Frank Edelblut, the commissioner of the New Hampshire Department of Education, and the plaintiffs’ school districts, Pemi-Baker and Pembroke.
ACLU of New Hampshire Senior Staff Attorney Henry Klementowicz, one of the attorneys representing Tirrell and Turmelle, said HB 1205 discriminates against his clients by not allowing them to play girls’ sports.
“It treats them differently from other students,” he says. “It is discrimination based on sex. We’re talking about people who are in high school, which can be a complicated time in a person’s life. To be subject to the stigma of being told you can’t participate in school sports because of who you are can have a lot of negative health effects.”
The lawsuit alleges the new state law is a violation of Title IX, a federal law that requires gender parity in public schools, and that it is a breach of the equal protection clause of the Fourteenth Amendment.
Lawyers for Turmelle and Tirrell were granted a temporary restraining order by US District Court Chief Judge Landya McCafferty in late August allowing Tirrell, who plays soccer on the girls’ team at Plymouth Regional High School, to begin practice. Turmelle plans to try out for the girls’ tennis and track and field teams at Pembroke Academy, according to Manzelli.
In evaluating the motion for a temporary restraining order, the court considered four factors that also apply to a preliminary injunction. Those include the likelihood of success on the merits, the movant’s likelihood of irreparable harm in the absence of relief, the balance of equities, and whether injunctive relief is in the public interest.
The court found that Tirrell is likely to succeed on the equal protection claim under the Equal Protection Clause which says “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” It “requires that ‘all persons similarly situated be treated alike.’”
Attorneys for Tirrell and Turmelle filed for a preliminary injunction in August that was granted on September 10. This allows the girls to participate in girls’ sports at their schools throughout the duration of the case.
In her ruling, McCafferty said “HB 1205, on its face, discriminates against transgender girls,” that it “is not even a close call.” The ruling goes on to say, “The stigma and humiliation that comes from such treatment of a child at the hands of the State is substantial and irreparable.”
In a statement, Klementowicz said the court order is a positive step forward in “restoring access not just for Parker and Iris but every child in the Granite State who has a right to equal opportunities at school guaranteed under the law.”
Klementowicz continued: “Laws that aim to exclude, single out, and discriminate against transgender youth have no place in New Hampshire and we are happy to see the court recognize how unconstitutional and harmful they are.”
Proponents of HB 1205 believe that allowing transgender girls to participate in girls’ sports provides an unfair advantage.
New Hampshire State Senator Tim Lang, R-Sanbornton, who voted for HB 1205, said biological girls are at a competitive disadvantage to biological boys. Lang introduced a bill like HB 1205 in the Senate that was defeated earlier this year.
Lang says he disagrees with McCafferty’s recent court order because it fails to recognize the lack of similarity between biological boys and girls.
“We’re talking about two different determinants, gender on one side and biological sex,” he says. “When you start confusing gender and sex, you can’t apply that.”
According to the lawsuit, Tirrell and Turmelle have been diagnosed with gender dysphoria, a health condition characterized by “distress resulting from an incongruence between one’s birth sex and gender identity.”
Attorneys for Tirrell and Turmelle argue in the suit that because both girls are receiving puberty-blocking medication and hormone therapy, they will not go through male puberty.
“I don’t want to characterize what [proponents of the bill] are saying but we’ve provided uncontested medical evidence that if a girl hasn’t gone through testosterone-driven puberty, there is no difference between transgender and cisgender girls,” Lang said. “HB 1205 doesn’t account for that. It also doesn’t account for differences between football and track and field. The law doesn’t tailor itself to these situations.”
Lang said the bill doesn’t have a component for hormone therapy and doesn’t take gender into account.
“[The bill] is not trying to cause hurt for anyone,” Lang said, adding that Title IX is used to focus on biological sex. “We’re erring on the side of caution and trying to protect the competitiveness of sports for biological females. People can choose to play on girls’ teams.”
Manzelli says HB 1205 is unfair because it singles out girls like Tirrell and Turmelle.
“I want to make it clear; I’m in this lawsuit as a mom,” Manzelli says. “It’s completely unfair to single out girls like Iris and Parker and to say that because they are transgender they can’t have the same rights and experiences as other girls. They want to have all same full experiences. They want to be part of the team.”