By Christie A. Theriault & Michael S. Carroll, PhD
On March 30, 2020, Governor Brad Little signed two bills into law in Idaho, both of which were regulations pertaining to transgender individuals. A transgender individual is defined as “someone whose gender identity differs from the sex they were assigned at birth” (GLAAD, 2018). Idaho House Bill 500, also referred to as the Fairness in Women’s Sport Act, barred transgender individuals from participating in sports aligned with their gender identity and mandates that they must participate on teams that reflect their biological sex. This distinction between biologically male and female athletes led state legislators to remove transgender women and girls from women’s sports due to “unfair advantages” they may possess due to elevated levels of testosterone. Intersex individuals were also included in legislation and banned from sport participation in Idaho. That same day, Idaho House Bill 509 was passed, requiring that the gender marker on all persons’ Idaho driver’s license and their birth certificate match their biological sex at birth and that the designation could not be changed. While Idaho HB 509 is not a factor in the current issue at hand of transgender individuals and sport, the bill demonstrates the discrimination present in Idaho laws. A subsequent lawsuit was filed less than a month after these bills became law as a result of the complete barring of transgender women from sports in Idaho, and additionally the invasive nature Idaho put in place for affirming an athlete’s biological sex. The Idaho lawsuit, Hecox v. Little (2020), has the potential to be a groundbreaking case not only in Idaho but in the United States. A decision in favor of the plaintiff would likely deter other states from passing similar laws, but a decision in favor of the defendant could be catastrophic for transgender athletes at all levels of play.
Hecox v. Little Complaint
The Fairness in Women’s Sport Act in Idaho is what led to the filing of Hecox v. Little. The complaint for declaratory and injunction relief was filed April 15, 2020 on behalf of the plaintiffs and states that Idaho is the “first and only state” in the United States to specifically ban participation of a category of women from a women’s sport, compared to other states without such legislative bans, despite many states banning transgender youth from participating in athletics (ACLU, 2020). The plaintiff believes that the Fairness in Women’s Sport Act violates Title IX as well as the Equal Protection Clause (EPC) of the 14th Amendment to the United States Constitution. The complaint also asserts that no other state has employed a policy whereby, in the event that the gender of a student is questioned, that the student must comply with a genital exam or chromosomal testing in order to prove their biological gender.
The complaint was filed against Boise State University, Gov. Bradley Little, Sherri Ybarra, the members of the Idaho State Board of Education, Marlene Tromp, Coby Dennis, the independent school district of Boise City, the members of the Board of Trustees of the independent school district of Boise City, and the members of the Idaho Code Commission. The plaintiffs in the Hecox v. Little case are Lindsay Hecox, a transgender student at Boise State University, and Jane Doe, a cisgender student at Boise High School. While plaintiff Jane Doe is not a transgender athlete, the requirements of proving gender specified in HB 500 affect her as well. All athletes would be required to prove their biological gender which would result in invasive testing if her gender were ever to be questioned by someone such as an opposing team or other athletes.
Justification Cited in Idaho House Bill 500
Legislative Findings and Purpose
Idaho House Bill 500 states that there are “inherent differences” between men and women, both physically and on a chromosomal level. Citing United States v. Virginia, 518 U.S. 515, 533 (1996), HB 500 states that sport and athletics are an area where “sex classifications allow for the full development of the talent and capacities of our Nation’s people.” The bill then states that the advantage or disadvantage of physiological differences between genders in athletic scenarios makes it unfair for the two sexes to compete together and that people should be cognizant of the “gender gap.” The presence of natural testosterone is where HB 500 gets most of its reasoning for athletes to be categorized by biological sex, as testosterone can put transgender females at an unfair advantage when competing with cisgender females. It is specifically stated in HB 500 that female sports teams are not open to biologically male students under any circumstances.
Protection for Educational Institutions
Idaho House Bill 500 then proceeds to state that, as a protection for educational institutions, if a student-athlete has their gender questioned then they need to present a physician’s statement verifying their biological sex or be subject to an exam as well as potentially an analysis of the student’s “genetic makeup.” The bill proceeds to provide protection for educational institutions in Idaho against complaints against a school for maintaining the separation of teams.
Cause of Action
Bill 500 further states that any student deprived of an athletic opportunity due to a violation of HB 500 has cause for injunctive relief and damages against the institution that caused the perceived deprivation. Protection for students against retaliation for whistleblowing are included and also listed as another circumstance allowing for injunctive relief and damages against the organization they reported. Idaho’s House Bill 500 also provides that if an institution suffers direct or indirect harm from a violation of the bill then they are also entitled to injunctive relief within two years of the incident.
Transgender Athlete Policies
NCAA
The National Collegiate Athletic Association has its own transgender athlete policies that colleges and universities are required to abide by as member schools. The NCAA defines and executes transgender policies through their Office of Inclusion department and strive to encourage, not ban, diversity in sport. Boise State University (BSU) is a member of the Mountain West Conference division of the NCAA. An excerpt from the NCAA’s transgender policy statement reads that schools need to “adopt thoughtful and effective policies that enable all students to participate fully” (NCAA, 2011) in order to create a positively inclusive and diverse atmosphere for student-athletes. The responsibility of enforcing the NCAA’s policies for transgender athletes falls to each school, and the NCAA outlines responsibilities of the student-athlete, the school, coaches, and athletic administrators to ensure all bases are covered. The NCAA has specifically stated that they do not support Idaho House Bill 500 (Cretaz, 2020). The following are the requirements of the NCAA for male transgender and female transgender athletes and how hormonal transitions can affect a student-athlete’s participation:
A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria and/or Transsexualism, for purposes of NCAA competition may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.
A trans female (MTF) student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism, for the purposes of NCAA competition may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment (NCAA, 2011).
State Interscholastic Policies
As mentioned previously, there are many states with legislation in place barring transgender youth from participating as student-athletes or placing restrictions on transgender athletes. As of 2020, there are currently eighteen states that exclude transgender youths from athletic participation (ACLU, 2020). Along with the individual state policies at an interscholastic level, there was a bill proposed in Congress that would define transgender student-athlete policies country-wide. The Protection of Women and Girls in Sports Act of 2020 states that its purpose is “[t]o provide that for purposes of determining compliance with title IX of the Education Amendments of 1972 in athletics, sex shall be determined on the basis of sex assigned at birth by a physician” (116th Congress, 2020).
Constitutional Law Protection for Plaintiff
14th Amendment Equal Protection Clause
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Transgender student-athletes arguably fall under Equal Protection, and by instituting Idaho’s House Bill 500 it can be argued that the law deprives transgender athletes a part of their life. By bringing HB 500 into law, Idaho has failed in its Constitutional duty to provide legal equal protection to transgender student-athletes in Idaho.
4th Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
If the biological sex of a student-athlete comes into question, then the state of Idaho allows investigation into their gender to determine whether they are violating Idaho HB 500. In order to determine the biological sex of a student-athlete, they may be required to comply with a physical examination or the examination and analysis of their chromosomal makeup. Acquiring the genetic makeup of a student-athlete could be seen as an unlawful search and seizure of their property, and an invasive physical examination legally could be considered an unreasonable search.
Title IX of the Education Amendments of 1972
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives … Federal financial assistance.”
Title IX is meant to ensure that a student is not treated differently based on their sex, and therefore the application of Title IX in this case is evident. Transgender student-athletes are being subjected to different rules based on gender identity and have been denied the right to compete on the team of their choice. Those who support Idaho House Bill 500 claim that the bill protects female athletes from unfair competition, but there is little evidence to support that claim.
Progress in Hecox v. Little
Currently, Hecox v. Little is still pending with no legal resolution in favor of either side. On April 30, 2020, a month after the complaint was filed, the plaintiff petitioned for injunction against HB 500 to stop the law from being in effect. The United States Assistant Attorney General and three other attorneys submitted a Statement of Interest on June 19 because the Department of Justice is authorized “to attend to the interests of the United States in a suit pending in a court of the United States” (28 U.S.C. § 517). In the statement of interest, they stated, “[t]his Court should find that the substantive provisions of Idaho’s Fairness Act comply with the Equal Protection Clause” (Case No. 1:20-cv-00184-DCN; Statement of Interest). On August 17, 2020, the Court granted the motion for preliminary injunction of House Bill 500 and the law will be suspended until a final legislation verdict has been reached by the Court.
Conclusion
Idaho is not the only state in 2020 to pass or attempt to pass a bill regarding transgender athletes. Many of the bills being passed in other states do force the exclusion of transgender youth from sports. A similar case is currently in courts in Connecticut, Soule et al. v. CT Association of Schools et al. (2020), in which three female high school students represented by their mothers are challenging Connecticut’s trans-inclusive policies for interscholastic student-athletes (ACLU, 2020). Connecticut’s attorney general stands behind the state’s transgender student-athlete policies, and the governor of the state has said he would be “willing to reconsider the law” (Megan, 2020). Both cases involve Title IX as well as Constitutional law ramifications, and it is yet to be seen how the Federal government will fully support or deny support for the transgender student-athletes in these lawsuits. A positive outcome in Hecox v. Little would have a largely positive effect for the defendants in Soule et al. v. CT Association of Schools et al., and the precedence the ruling would establish could lead to the dismissal of the Connecticut case. While this case has still not reached an end and remains in court without a final decision, there are signs that this case could be a revelation for transgender athletes. If the court were to rule in favor of the plaintiff, it would show that barring transgender athletes from participating in the league matching their gender identity is clearly unconstitutional.
References
ACLU Idaho. (2020). 2020 – HB 500 – Barring transgender girls in sports. Retrieved from https://www.acluidaho.org/en/legislation/2020-hb-500-barring-transgender-girls-sports
ACLU Idaho. (2020, July 02). Hecox v. Little. Retrieved from https://www.acluidaho.org/en/cases/hecox-v-little
ACLU. (2020). Legislation affecting LGBT rights across the country. Retrieved September, 2020, from https://www.aclu.org/legislation-affecting-lgbt-rights-across-country
ACLU. (2020, August). Trans rights under attack in 2020. Retrieved September, 2020, from https://www.aclu.org/issues/lgbt-rights/transgender-rights/trans-rights-under-attack-2020
ACLU. (2020, March 4). Soule et al v. CT Association of Schools et al. Retrieved September 06, 2020, from https://www.aclu.org/cases/soule-et-al-v-ct-association-schools-et-al
Cretaz, B. (2020, July 22). What to know about Idaho’s legal battle to block trans student athletes. Retrieved from https://www.refinery29.com/en-us/2020/07/9926936/idaho-transgender-student-athletes-court-case
Davis, F. (2020, April 01). Governor signs controversial HB 500 into law. Retrieved from https://www.postregister.com/chronicle/sports/governor-signs-controversial-hb-500-into-law/article_357c532c-b356-5f40-8b11-5d5b59a66bf3.html
Fairness in Women’s Sport Act, 116th Congress, H.R.5603 (2020).
GLAAD. (2018, June 01). Transgender FAQ. Retrieved from https://www.glaad.org/transgender/transfaq
Hecox v. Little, No. 1:20—cv—00184 (D Idaho, Apr. 15, 2020).
HHS Office of the Secretary, & Office for Civil Rights. (2019, October 28). Title IX Education Amendments. Retrieved from https://www.hhs.gov/civil-rights/for-individuals/sex-discrimination/title-ix-education-amendments/index.html
Legal Information Institute. (n.d.). 14th Amendment. Retrieved from https://www.law.cornell.edu/constitution/amendmentxiv
Legal Information Institute. (n.d.). Fourth Amendment. Retrieved from https://www.law.cornell.edu/constitution/fourth_amendment
Megan, K. (2020, June 15). A federal agency says Connecticut must keep trans students from girls’ sports. The state disagrees. Retrieved from https://ctmirror.org/2020/06/15/a-federal-agency-says-connecticut-must-keep-trans-students-from-girls-sports-the-state-disagrees/
Morrow, N. (2020, August 17). VICTORY: U.S District Court grants injunction against enforcement of Idaho’s discriminatory, anti-transgender HB 500. Retrieved from https://www.hrc.org/press-releases/victory-u-s-district-court-grants-injunction-against-enforcement-of-idahos-discriminatory-anti-transgender-hb-500
National Collegiate Athletic Association. (2011, August). NCAA Inclusion of Transgender Student-Athletes [PDF]. NCAA Office of Inclusion.
Soule et al v. Connecticut Association of Schools, Inc. et al, No. 3:20-cv-00201 (D Connecticut, Feb. 12, 2020)
Steube, W. (2020, January 14). All Info – H.R.5603 – 116th Congress (2019-2020): Protection of Women and Girls in Sports Act of 2020. Retrieved September 2020, from https://www.congress.gov/bill/116th-congress/house-bill/5603/all-info
Christie Theriault is a student at Troy University working towards a Ph.D. in Sport Management. Her doctoral dissertation will specialize in research related to law in sport and recreation. She lives in Pensacola, FL.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He serves as Online Program Coordinator for Undergraduate, Graduate, and Doctoral Programs in Sport Management with Troy University. He lives in Orlando, FL.
