UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Parker Tirrell, et al.
v. Case No. 24-cv-251-LM-TSM Opinion No. 2024 DNH 069 P Frank Edelblut, et al.
ORDER
Two minor plaintiffs, by and through their respective parents and next
friends, bring this action against the Commissioner of the New Hampshire
Department of Education, members of the New Hampshire State Board of
Education, the Pemi-Baker Regional School District and members of its School
Board, and the Pembroke School District and members of its School Board.
Plaintiffs allege that defendants’ enforcement of a recently enacted New Hampshire
law prohibiting transgender girls (i.e., people who were born biologically male but
who identify as female) from participating in girls’ sports violates their rights under
the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681
et seq. Presently before the court is plaintiff Parker Tirrell’s motion for a temporary
restraining order.1 Doc. no. 6. The court held a hearing on Parker’s motion on
August 19, 2024. The court orally granted Parker’s motion at that hearing and
1 While both Parker and the other plaintiff, Iris Turmelle, seek a preliminary
injunction as well, see doc. no. 7, Parker is the only plaintiff seeking emergency relief. As such, the court defers ruling on doc. no. 7 at this time. explained that a written order would follow setting forth the court’s finding of facts
and rulings of law. This is that order.
STANDARD OF REVIEW
“A temporary restraining order ‘is a provisional remedy imposed to maintain
the status quo until a full review of the facts and legal arguments is available.’”
Ginzburg v. Martínez-Dávila, 368 F. Supp. 3d 343, 347 (D.P.R. 2019) (quoting Pro-
Choice Network v. Schenck, 67 F.3d 377, 388-89 (2d Cir. 1995)). A temporary
restraining order (“TRO”) is nevertheless an extraordinary remedy which must be
granted “sparingly and only in cases where the need for extraordinary equitable
relief is clear and plain.” Nw. Bypass Grp. v. U.S. Army Corps of Eng’rs, 453 F.
Supp. 2d 333, 338 (D.N.H. 2006) (quotation omitted).
In evaluating a motion for a TRO, the court considers the same four factors
that apply to a motion for a preliminary injunction. Karlsen v. Town of Hebron, Civ.
No. 18-cv-794-LM, 2018 WL 11273651, at *1 (D.N.H. Sept. 28, 2018). Those factors
are: the movant’s 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. Id. Likelihood of success and irreparable
harm are the most important factors. Strahan v. McNamara, 642 F. Supp. 3d 204,
207 (D.N.H. 2022). When, as here, the defendants are government entities or
officials sued in their official capacities, the balance of equities and the public
interest factors merge. Does 1-6 v. Mills, 16 F.4th 20, 37 (1st Cir. 2021).
2 FINDINGS OF FACT2
The phrase “gender identity” is an accepted medical term for a person’s
innate sense of gender. Everyone has a gender identity, and it may or may not align
with their biological sex or anatomy. A transgender girl is a person who was born
with a male anatomy but whose gender identity is female.
Transgender people experience a medical condition known as gender
dysphoria. Gender dysphoria is a medical condition recognized in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders
(“DSM-V”). Gender dysphoria results from a lack of alignment between one’s birth
sex and gender identity. If left untreated, it may result in anxiety or depression,
eating disorders, substance abuse, and even suicide. Providers treat gender
dysphoria through medical interventions that allow patients to live more
consistently with their gender identity. In addition, social acceptance of one’s
gender identity is critical to a transgender person’s mental health and sense of well-
being.
When a transgender girl and her parents seek treatment for gender
dysphoria prior to the onset of puberty, providers may prescribe puberty-blocking
medication to prevent the development of physical characteristics that conflict with
the child’s gender identity. When this occurs, the transgender girl will not
2 The following findings of fact are based upon the declarations of Sara Tirrell,
Luisa Fontes Aguiar, M.D., and Daniel Shumer, M.D., all of which are attached to the plaintiffs’ motion for a preliminary injunction. See doc. nos. 7-4, 7-5, & 7-6. Neither the State nor the Pemi-Baker defendants contest the assertions contained in those declarations for purposes of Parker’s TRO motion. 3 experience male puberty and will not experience physical changes caused by
testosterone, such as male muscular development, facial hair, or an Adam’s apple.
The provider may thereafter prescribe hormones to induce female puberty. If this
course of treatment is followed, the transgender girl typically has the same levels of
estrogen and testosterone as other girls and significantly lower testosterone than
pubescent boys.
Before puberty, there are no significant differences in athletic performance
between boys and girls. After puberty, boys on average perform better than girls in
most sports. Disparities in testosterone production drive this divergence. After
puberty, boys produce significantly more testosterone than girls, which results in
increased muscle mass and strength. A transgender girl who does not experience
male puberty and who receives hormone therapy to induce female puberty will not
have an athletic advantage over other girls as a result of being born with a male
anatomy.
Plaintiff Parker Tirrell is a fifteen-year-old transgender girl entering her
sophomore year at Plymouth Regional High School. She knew she was a girl from
an early age, and preferred dressing as a girl when at home, engaging in
stereotypically female childhood activities, and socializing with other girls. At age
twelve, Parker, who had not yet begun living as a girl in all aspects of her life,
began experiencing mental distress. She and her parents sought mental health
treatment. During the summer between her seventh- and eighth-grade years,
Parker was evaluated at a health clinic by a team of providers that specialize in
4 diagnosing and treating gender dysphoria in children and adolescents. Ultimately,
Parker was diagnosed with gender dysphoria.
Parker’s treatment for gender dysphoria first involved socially transitioning
and living as a girl. At the start of her eighth-grade year in school, Parker began
using female pronouns, wearing dresses and skirts to school, and living as a girl in
all aspects of her life. This included participating in girls’ sports and using girls’
facilities at school. She began taking medications to block male puberty in May
2023, toward the end of her eighth-grade year. She began female hormone therapy
in December 2023 while in ninth grade. Her treatment has caused her to develop
physiological changes associated with female puberty. She will not undergo male
puberty.
Sports have always been a big part of Parker’s life. She has played in
elementary, middle, and high school and in town recreational leagues. Sports are
how Parker makes friends and connects with others. While she has participated in a
variety of school sports, soccer is her passion. In eighth grade, she played on the
girls’ soccer and track teams at Plymouth Elementary School.3 In ninth grade, she
played on the girls’ soccer team at Plymouth Regional High School. Her high school
soccer team is her primary social outlet, both on and off the field. Most of her
friends are her teammates, and they have given Parker an important source of
acceptance, belonging, and emotional support.
3 Plymouth Elementary is a K-8 school.
5 Playing on a boys’ soccer team is not a realistic option for Parker. Parker’s
providers have prescribed treatment requiring her to live and participate in the
world as a girl. Playing on a boys’ soccer team would likely have adverse impacts on
Parker’s mental health and would exacerbate symptoms of gender dysphoria.
On July 19, 2024, New Hampshire enacted House Bill 1205 [hereinafter “HB
1205”]. 2024 N.H. Laws Ch. 228. In general terms, HB 1205 prohibits transgender
girls from participating in girls’ school sports. See RSA 193:41. The law took effect
on August 18, 2024—one day before the first day of practice for Parker’s high school
soccer team.
Parker and another minor plaintiff, Iris Turmelle (by and through her
parents and next friends), filed this action on August 16, 2024. The complaint
brings four counts, two of which relate to Parker. In Count I, Parker alleges that
HB 1205 violates her rights under the Equal Protection Clause of the Fourteenth
Amendment. In Count II, Parker alleges that HB 1205 violates her rights under
Title IX. Both counts seek declaratory and injunctive relief. All individually named
defendants are sued only in their official capacities.
On the same day plaintiffs filed their complaint, Parker also filed a motion
for a TRO (doc. no. 6) and both plaintiffs filed a motion for a preliminary injunction
(doc. no. 7). The TRO motion relates only to Parker, while the preliminary
injunction motion relates to both plaintiffs.4 Parker argues in the TRO motion that
4 Iris does not plan to try out for school sports until the winter, so she has not
requested emergency relief. 6 the denial of immediate relief would cause her irreparable harm because she would
be prohibited from playing on her school soccer team solely because she is a
transgender girl, which would stigmatize her, undermine her treatment, and
deprive her of the critical developmental experience of participating in high school
sports. At a hearing on August 19, 2024, the court orally granted Parker’s motion
for a TRO and indicated that a written order setting forth findings of fact and
rulings of law would follow.
RULINGS OF LAW
As noted, to obtain a TRO, a plaintiff must demonstrate a likelihood of
success on the merits, a likelihood of irreparable harm in the absence of relief, that
the balance of equities is in her favor, and that injunctive relief is consistent with
the public interest. Karlsen, 2018 WL 11273651, at *1. The court will consider each
area in turn.
I. Parker Is Likely to Succeed on the Merits of Her Equal Protection Claim
The Equal Protection Clause provides that “[n]o state shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. It “requires that ‘all persons similarly situated be treated alike.’” Rocket
Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 10 (1st Cir. 2013) (ellipsis omitted)
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In
considering an equal protection challenge, the court’s first task is to discern the
applicable standard of review. Laws that treat similarly situated people differently
because of sex or gender trigger what is known as intermediate or heightened
7 scrutiny. See United States v. Virginia (VMI), 518 U.S. 515, 555 (1996). The
plaintiffs contend that heightened scrutiny applies to HB 1205. The State
defendants conceded as much at the hearing on Parker’s TRO motion. And the
Pemi-Baker defendants took no position on the matter.5 Given the lack of dispute on
this issue, the court applies heightened scrutiny to HB 1205.6
To satisfy heightened scrutiny, the challenged law “must be substantially
related to achieving an important governmental objective.” Massachusetts v. U.S.
Dep’t of Health & Hum. Servs., 682 F.3d 1, 9 (1st Cir. 2012). The justification for
the challenged law must be “exceedingly persuasive.” VMI, 518 U.S. at 531
(quotation omitted). The burden of demonstrating a satisfactory justification “is
demanding and rests entirely on the State.” Id. at 533. Moreover, the proffered
justifications must represent the law’s “actual . . . purposes,” and cannot be
“hypothesized or invented post hoc in response to litigation.” Id. at 533, 535
(italicization omitted).
5 The Pemi-Baker defendants made clear at the hearing that they are taking
no position in this case as to whether HB 1205 violates the plaintiffs’ rights under the Equal Protection Clause or Title IX, and that they merely seek to ascertain their legal obligations so that they may administer their athletic programs in compliance with the law.
6 Even if the matter had been disputed, the court notes that, “while the First
Circuit has not spoken on the subject, other circuits have held that intermediate scrutiny applies to discrimination based on transgender status in the equal protection context.” Bos. All. of Gay, Lesbian, Bisexual, and Transgender Youth v. U.S. Dep’t of Health & Hum. Servs., 557 F. Supp. 3d 224, 244 (D. Mass. 2021) (collecting cases); see also Bostock v. Clayton Cnty., 590 U.S. 644, 669 (2020) (“[D]iscrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”). 8 At the TRO hearing, the State argued that HB 1205 serves the important
governmental objectives of ensuring that girls’ school sports competitions are fair
and safe. Putting aside the fact that the State has put forth no evidence at this
juncture that these objectives represent the law’s actual purposes, the State has
failed to demonstrate that application of the law to Parker is substantially related
to achieving these goals.
With respect to fairness, although the State did not articulate its reasoning
at the August 19 hearing as to how HB 1205 enhances fairness in girls’ sports, this
argument has been raised in defense of similar laws in other actions. See, e.g.,
Hecox v. Little, 104 F.4th 1061, 1081-82 (9th Cir. 2024). Ensuring competitive
fairness in girls’ sports is indeed an important state interest. See id. at 1081. The
State has failed to show, however, that applying HB 1205 to Parker is substantially
related to achieving this goal. It is currently undisputed that, because Parker
received treatment to block male puberty and induce female puberty, she does not
enjoy the testosterone-driven advantage in average athletic skill that pubescent
males enjoy relative to pubescent girls. Therefore, barring Parker from playing on
her high school soccer team does nothing to advance competitive fairness in girls’
sports. See B.P.J. by Jackson v. W.V. State Bd. of Educ., 98 F.4th 542, 559 (4th Cir.
2024) (reversing grant of summary judgment to defendants on equal protection
claim in similar action where plaintiff “presented evidence that transgender girls
with her background and characteristics possess no inherent, biologically-based
competitive advantages over cisgender girls when participating in sports” (emphasis
9 omitted)). For the same reason, the State has failed to demonstrate that applying
HB 1205 to Parker is substantially related to advancing safety in girls’ sports.
For these reasons, the court finds, at this early stage, that Parker is likely to
succeed on the merits of her equal protection claim for purposes of granting a TRO.
II. Parker Is Likely to Succeed on the Merits of Her Title IX Claim
Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial assistance.” 20
U.S.C. § 1681(a). To prove her Title IX claim, Parker must show that, as applied to
her, HB 1205 would (1) exclude her from participation in, deny her the benefits of,
or subject her to discrimination in (2) an educational program receiving Federal
financial assistance (3) on the basis of sex or gender. Doe v. Harv. Univ., 410 F.
Supp. 3d 332, 334 (D. Mass. 2019). It is currently undisputed that the Pemi-Baker
Regional School District receives federal financial assistance and that Parker would
be excluded from participation in girls’ sports at Plymouth Regional High School
under HB 1205. The only question presently before the court with respect to
Parker’s Title IX claim is whether her exclusion would be on the basis of sex or
gender. The court has little difficulty answering that question in the affirmative.
HB 1205 created two new statutes: RSA 193:41 and RSA 193:42. RSA 193:41
provides that interscholastic sports teams “must be expressly designated as one of
the following . . . : (1) Males, men, or boys; (2) Females, women, or girls; or (3) Coed
or mixed.” RSA 193:41, II(a). These designations must be “based on the biological
10 sex at birth of intended participants.” Id. A student’s sex “shall be determined by
the student’s biological sex on the student’s official birth certificate,” which must
have been “[i]ssued at or near the time of the student’s birth” and cannot have been
modified except to correct clerical errors in denoting the student’s biological sex.
RSA 193:41, III. “Athletic teams or sports designated for females, women, or girls
shall not be open to students of the male sex.” RSA 193:41, II(a). This bar on
participation in girls’ sports includes transgender girls: girls whose sex was
designated as male at the time of their birth based on their external anatomy. See
id.
Compelling authority on this issue is found in the Supreme Court’s opinion in
Bostock v. Clayton County. Bostock involved Title VII. Similar to Title IX’s
proscription of discrimination “on the basis of sex” in educational programs
receiving Federal financial assistance, Title VII prohibits employers from taking
certain actions against an employee “because of [the employee’s] sex.” 42 U.S.C.
§ 2000e-2(a)(1). In Bostock, the Supreme Court held that an employer who
discriminates against an employee based on transgender status violates Title VII’s
ban on discrimination “because of . . . sex.” Id.; see Bostock, 590 U.S. at 683. “[I]t is
impossible to discriminate against a person for being . . . transgender without
discriminating against that individual based on sex.” 590 U.S. at 660.
Courts have applied Bostock’s interpretation of Title VII to Title IX to hold
that discrimination on the basis of transgender status constitutes discrimination on
the basis of sex in violation of Title IX. See, e.g., A.C. by M.C. v. Metro. Sch. Dist. of
11 Martinsville, 75 F.4th 760, 769 (7th Cir. 2023). At the hearing on Parker’s TRO
motion, the State could not articulate why the Supreme Court’s textual
interpretation of materially identical language in Title VII would not apply to Title
IX. At this early juncture, the court finds for purposes of Parker’s TRO motion that
HB 1205’s exclusion of transgender girls from girls’ sports constitutes an exclusion
on the basis of sex in violation of Title IX, and that Parker is therefore likely to
succeed on the merits of her Title IX claim.
III. Parker Is Likely to Suffer Irreparable Harm in the Absence of Immediate Relief
Parker’s soccer team began practicing for the fall season on August 19, 2024.
Their first game is on August 30. In the absence of immediate relief, Parker would
be barred from participating on her soccer team—her primary source of social and
emotional support and acceptance—solely because she is a transgender girl. In
treating Parker in this way, HB 1205 would be “very publicly branding [her] with a
scarlet ‘T.’” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 (4th Cir. 2020)
(brackets omitted) (quoting Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 530 (3d
Cir. 2018)). Not only would such public stigmatization harm Parker, it would run
directly counter to her medical providers’ recommendation that she seek social
acceptance of her gender identity to alleviate the misalignment between her birth
sex and her innate sense of gender. See Doe v. Horne, 683 F. Supp. 3d 950, 975 (D.
Ariz. 2023) (ruling that similar plaintiffs in similar case were likely to suffer
irreparable harm in the absence of preliminary relief because “[p]laintiffs’ mental
health is dependent on living as girls in all aspects of their lives”). Although the
12 factual record in this suit currently indicates that gender dysphoria is highly
treatable, severe consequences may result in the absence of treatment, including
substance use disorder, eating disorders, mental health disorders, and even suicide.
At this critical stage of her youth, to bar Parker from participating in the primary
means by which she achieves social acceptance of her gender identity would cause
immediate, substantial, and irreparable harm. See Grimm, 972 F.3d at 618; Horne,
683 F. Supp. 3d at 975.
IV. The Balance of Equities and the Public Interest Weigh in Favor of a TRO
As noted, when the defendants are government entities or officials sued in
their official capacity, the balance of equities and public interest factors merge.
Does 1-6, 16 F.4th at 37. Here, as just discussed, Parker would suffer immediate,
substantial, and irreparable harm in the absence of a TRO. By contrast, the
defendants stand to suffer little harm if a TRO is granted. Prior to HB 1205’s
enactment, Parker had been participating in girls’ sports at Plymouth Elementary
School and Plymouth Regional High School. Issuing a TRO would only provisionally
maintain that status quo while the court considers plaintiffs’ motion for a
preliminary injunction. See Ginzburg, 368 F. Supp. 3d at 347. Moreover, the court
has determined (at least for purposes of the TRO motion) that Parker is likely to
succeed in arguing that HB 1205 is unconstitutional. The State “has no interest in
enforcing an unconstitutional law, [and] the public interest is harmed by the
enforcement of laws repugnant to the United States Constitution.” Siembra Finca
13 Carmen, LLC v. Sec’y of Dep’t of Agric. of P.R., 437 F. Supp. 3d 119, 137 (D.P.R.
2020). Thus, the balance of equities and the public interest favor a TRO.
CONCLUSION
For the reasons stated herein and on the record at the hearing on August 19,
2024, the defendants listed in doc. no. 35 are enjoined in the manner set forth in
that order.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
August 22, 2024
cc: Counsel of Record