By Rachel S. Silverman
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.
