The Ninth U.S. Circuit Court of Appeals upheld an injunction against an Idaho law barring transgender athletes from participating in student athletics. The court found the law likely violates the rights of transgender students under the Equal Protection Clause of the U.S. Constitution.
Citing United States v. Virginia, 518 U.S. 515, 555 (1996), and Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir. 2019), the panel stated that “a heightened level of scrutiny applies to laws that discriminate on the basis of transgender status and sex.” Thus, “the district court did not err in concluding that heightened scrutiny applied because the Act discriminates on the basis of transgender status by categorically excluding transgender women from female sports and on the basis of sex by subjecting all female athletes, but not male athletes, to invasive sex verification procedures to implement that policy.
“Because the Act subjects only women and girls who wish to participate in public school athletic competitions to an intrusive sex verification process and categorically bans transgender women and girls at all levels, regardless of whether they have gone through puberty or hormone therapy, from competing on female, women, or girls teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes,” the panel held that plaintiffs “were likely to succeed on the merits of their equal protection claim.”
Concurring in part and dissenting in part from the other judges, Judge Christen wrote that “given the categorical sweep of the ban on transgender students, the medical consensus that circulating testosterone rather than transgender status is an accurate proxy for athletic performance, and the unusual and extreme nature of the Act’s sex verification requirements, the district court did not abuse its discretion by granting injunctive relief.”
Disagreeing with the majority in part, Judge Christen wrote that she “read the sex dispute verification provision to apply to any student, male or female, who participates on women’s or girls’ athletic teams. Accordingly, it is the team an athlete chooses to join that dictates whether they are subject to the statute’s verification process, not the athlete’s sex.” Judge Christen also wrote that “the district court’s injunction lacked specificity as required by Federal Rule of Civil Procedure 65(d)(1) because it failed, among other things, to specify whether it was enjoining all provisions of the Act, or only some of them, or whether it was enjoining any specific provision of the Act in its entirety or only as applied to certain classes of individuals.” Finally, Judge Christen stated that “the injunction was overbroad to the extent that it applies to transgender women who are not receiving gender-affirming hormone therapy.”
Background
Governor Bradley Little signed Idaho’s Fairness in Women’s Sports Act into law on March 30, 2020, making Idaho the first state to prohibit transgender and intersex athletes from competing in women’s sports.
Lindsey Hecox, a transgender athlete from Boise State, and a co-plaintiff, Jane Doe, sued the state of Idaho over the constitutionality of its Fairness in Women’s Sports Act.
In August 2020, the U.S. District Court for Idaho issued a preliminary injunction because the court believed the plaintiffs would likely succeed in establishing the Act as unconstitutional. The court stated the Act would likely violate the Equal Protection Clause of the 14th Amendment because the Act prohibits transgender women from participating in any women’s sports sponsored by a public school. The state appealed the decision to the Ninth Circuit Appellate Court. In June 2021, the Ninth Circuit remanded the case to the trial court to consider questions of mootness.
The district court determined this case was not moot, and the Ninth Circuit affirmed this decision. The court stated that the events during litigation did not make the case moot. Hecox withdrew from the Boise State in October 2020, but she had confirmed a plan to re-enroll after establishing Idaho state residency and planned to try out for both the track and cross-country teams. The withdrawal was not a barrier to re-enrollment. When the complaint was filed, Hecox had not yet tried out for the women’s track and cross-country teams in the Fall of 2020 because the Fairness in Women’s Sports Act barred her from doing so. Hecox re-enrolled as planned and began playing club soccer in fall 2022. The preliminary injunction allowed her to play club soccer. Without the preliminary injunction, the Fairness in Women’s Sports Act bars her from playing on any women’s sports teams.
The court explained that mootness is only justified if it is clear that the plaintiff no longer needs judicial protection. The Supreme Court and the Ninth Circuit have stated that an intent to resume said activity is sufficient to show a live controversy. Therefore, since Hecox had explained a concrete plan to re-enroll in the university after establishing residency and trying out for the women’s sports teams, this case was deemed to continue to present a live controversy and, therefore, not moot.
Reaction
“This is an important victory for common sense, equality, and the rights of transgender youth under the law,” said Chase Strangio, Deputy Director for Transgender Justice at the ACLU’s LGBT & HIV Project. “The court found that transgender athletes like Lindsay face irreparable harm by a ban on their right to participate as who they are and held laws like Idaho’s not only target and discriminate against transgender women and girls but also discriminate against all women and girls. Idaho’s ban and all others like it are designed to alienate and stigmatize transgender people and we’ll never stop fighting until all transgender youth are given the equal playing field they deserve.”
“When our laws ignore biological reality and allow males to compete in women’s sports, women are harmed and denied athletic opportunities,” Alliance Defending Freedom attorney Christiana Kiefer stated.
