CONCORD, N.H. — The U.S. Justice Department is defending itself against two New Hampshire transgender high school students who allege that President Donald Trump’s executive orders earlier this year would unconstitutionally deprive them of playing girls’ sports.
In a June 6 filing, Deputy Assistant Attorney General Richard Lawson argued the two students, Parker Tirrell and Iris Turmelle, had not established an imminent risk of being affected by the executive orders. And he contended that even if the executive order did affect the students, the administration’s intent — to prevent transgender girls from playing girls’ sports — is lawful.
“… The Sports Order’s classification is rationally related to the physical advantages of males in sports and serves the legitimate government purpose of ensuring equal opportunities for females,” Lawson wrote.
The filing comes as Tirrell and Turmelle are suing the state of New Hampshire in federal court to overturn House Bill 1205, a 2024 New Hampshire law that limits middle school and high school girls’ sports teams to children who were female at birth. That law would prevent Tirrell and Turmelle, both transgender girls, from participating on their sports teams.
Preliminary injunction
In September, Judge Landya McCafferty of the U.S. District Court of New Hampshire issued a preliminary injunction that temporarily stops HB 1205 from applying to Tirrell and Turmelle, allowing them to continue playing while the case proceeds. That order does not apply to other transgender students in the state.
But while the state law is temporarily frozen, lawyers for Tirrell and Turmelle argue Trump’s executive orders this year pose a new threat. Those orders, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and “Keeping Men out of Women’s Sports,” require the Department of Education to interpret Title IX, the law prohibiting sex-based discrimination in schools, to exclude transgender female athletes from female sports and warn school districts to align their policies to that interpretation or lose federal funding.
In February, attorneys for Turmelle and Tirrell filed a motion to expand their lawsuit against the state to also include the Trump administration, and specifically asked the New Hampshire District Court to strike down Trump’s executive orders.
The threat question
In its recent response, the Trump administration argues there is no evidence that the president’s executive orders have affected Tirrell or Turmelle yet, and that the lawsuit seeking to stop those orders should thus be dismissed. Without that direct harm, plaintiffs have failed to state a proper claim for a lawsuit, defendants wrote.
“Plaintiffs lack constitutional standing, and their stated speculative risk of future injury is not close to imminent and may never become ripe,” the Department of Justice wrote.
The plaintiffs had argued that the executive order “to target investigations and rescind federal funding” put the girls’ ability to continue playing on girls’ sports teams at risk. But the government argues that that alleged threat is not strong enough. And they say the plaintiffs have not met a critical two-part test: to show that the injury is both “imminent” — meaning it is “certainly impending” and not just speculative — and “particularized” — meaning it specifically affects the plaintiffs suing, and not just the general population.
In an interview Monday, Chris Erchull, staff attorney for GLBTQ Legal Advocates & Defenders (GLAD), rejected the government’s contention that the executive orders do not pose a threat to the New Hampshire students.
He pointed to the Trump administration’s April lawsuit against the Maine Department of Education, in which the administration argued the state was violating Title IX by allowing transgender students to compete on girls’ sports teams. That example, Erchull said, indicates that the administration could easily turn its attention on New Hampshire school districts.
“If they’re not challenging the executive order in court, without court protection, the United States Department of Education can and almost certainly will go after the school districts where these two young people play sports and try to cut funding to those schools,” he said.
Case called speculative
But the Department of Justice attorneys wrote that any future funding cuts to Turmelle or Tirrell’s public schools that might result from Trump’s executive order would involve a number of decisions in the future and are “far too speculative,” the government wrote. The process to cut off Title IX funds to a school district requires the Department of Education to file a notice to the school district, includes a potential hearing, and mandates a full written report to Congress, all of which can take months, the government wrote.
“Plaintiffs here do not (and cannot) plausibly allege that the Agency Defendants have even started this multi-step process for any educational program in New Hampshire, much less the two particular schools that Plaintiffs attend,” the government wrote. “They do not (and cannot) point to even an initiated investigation in New Hampshire.”
Attorneys with the Justice Department suggested that the U.S. Department of Education might not even bother with investigations into New Hampshire schools, since the state already passed a state law, HB 1205, barring transgender girls from playing girls’ sports.
Through the lens of Title IX
Even if Tirrell and Turmelle are blocked from participating in sports, the executive orders do not violate the Fifth Amendment or Title IX, the government motion argues.
According to the motion, Trump’s executive orders are designed to protect women’s sports, meaning that they uphold the purpose of Title IX.
“Because of the inherent physiological difference between males and females, the Sports Order’s policy of ‘oppos[ing] male competitive participation in women’s sports’ is substantially related to the important government interest of safety, fairness, and ensuring ‘women and girls the equal opportunity to participate and excel in competitive sports,’” the motion states.
The government’s motion continues by asserting that neither transgender status nor gender identity are protected classes under Title IX.
In 2020, the Supreme Court held in Bostock v. Clayton County that gender identity is a protected class under the anti-sex-based discrimination provision of Title VII, in a case relating to employment law. But the Department of Justice says that decision does not apply to Title IX, and that the goal of keeping girls’ sports exclusive to cisgender girls is allowed under federal law.
Response brief expected
Erchull disagrees.
“When you make a transgender status-based classification, that’s a sex-based classification,” he said. “And we have tons of precedent that says that that is entitled to heightened scrutiny, but what the federal government is saying is that that doesn’t count.”
The plaintiffs in the case will likely file a response brief to the government’s motion in the coming weeks, and eventually the parties will appear in federal court for oral arguments, Erchull said.
And attorneys on both sides are watching the Supreme Court this month. Justices are expected to issue a decision in United States v. Skrmetti, a lawsuit challenging the constitutionality of a Tennessee ban on transgender medical care. The decision could affect how both sides shape their arguments in New Hampshire, Erchull said.