Questions about who should be allowed to compete in school sports in New Hampshire played out before a federal judge and the body that sets eligibility rules this week.
But none of those conversations clarified eligibility rules for one group of students: transgender girls. And that’s causing confusion and uncertainty for school districts.
At issue is a 2024 state law that prohibits those students from playing on girls sports teams. In August, a federal judge temporarily set aside the law – but only as it applies to the Pembroke and Plymouth school districts, where students challenged it. School leaders elsewhere in New Hampshire have been asking for clarity on how that law applies to them ever since.
Meanwhile, members of the New Hampshire Interscholastic Athletic Association met in Concord Friday to discuss eligibility rules for other issues, including scrimmages with prep schools and out-of-season competitions.
Eligibility of transgender girls was not on the agenda. And it was unclear if the topic came up, because the group began its meeting before the posted start time.
Still, the meeting drew protesters who objected to the inclusion of transgender girls in girls sports. Among them was Rachel Goldsmith, chairperson of the Hillsborough County chapter of Moms for Liberty. She said her concerns are two-fold.
Goldsmith does not believe girls’ sports teams should include transgender girls. And she wants more transparency from the New Hampshire Interscholastic Athletic Association, which sets rules and eligibility recommendations for school sports.
The association’s website does not list its committee members or include meeting minutes or decisions. Nor does it make the association make agendas available to the public prior to meetings. And while the website said the eligibility committee was meeting at 9 a.m., the meeting was underway, behind a locked door, when an NHPR reporter was allowed in at 9 a.m.
Executive Director Jeffrey Collins did not return messages.
The association’s current eligibility policy says it is “committed to providing transgender student-athletes with equal opportunities to participate in NHIAA athletic programs consistent with their gender identity.”
The policy leaves the determination of a student’s gender up to the school district. That has done little to resolve the confusion that followed after the federal court temporarily stopped the law from being enforced in the Plymouth and Pembroke districts.
Judge Landya McCafferty concluded the students who sued are likely to prevail in their argument that a law that targets transgender girls is unconstitutional. Further confusion for school leaders followed when New Hampshire Education Commissioner Frank Edelblut advised districts to enforce the new law, saying the court ruling was limited to schools in the Pembroke and Plymouth districts.
Chris Erchull, a staff attorney at GLBTQ Legal Advocates and Defenders who represents the students who challenged the law, asked the court Thursday to extend that ruling to all districts. The judge indicated a decision likely won't be determined before the next school year.
“There’s lots of confusion right now among the school districts and our position has remained the same,” Erchull said after the hearing. “Federal law requires providing equal opportunities to transgender students and treating them on the same terms and conditions as other students. So there's no question… I mean, school boards are in a difficult position for sure.”
Erchull encouraged districts to adopt “permissive” policies. “And, if there is any transgender student who is being denied access to school sports, I want to hear from them because we could potentially file additional litigation,” he said.
Michael Garrity, spokesperson for the New Hampshire Attorney General’s Office, said his agency disagrees and believes the law is constitutional and should be applied across the state. The state’s attorneys are challenging Erchull’s request to extend McCafferty's order to all transgender girl athletes in the state.
“Our office will continue to defend the law, which ensures fairness in sports and protects the integrity of women’s athletics,” Garrity wrote in an email.
