Transgender Athletes and Sport Participation – Updates in the Hecox v. Little Case

Nov 5, 2021

By Andrew Gatti, MS & Michael S. Carroll, PhD

In April 2020, Lindsay Hecox brought a lawsuit against Bradley Little, the current Governor of the state of Idaho, for the state’s recently enacted Fairness in Women’s Sports Act (HB 500). Hecox was a transgender woman attending Boise State University (BSU) at the time of the complaint. She sought to run for the university’s cross-country team and compete at the NCAA Division I level. However, Governor Little signed the Act in March of 2020, and it was made effective on July 1st, 2020. The Act prohibits transgender women for participating in women’s sports teams. The bill calls for all public schools and those that compete against public schools to classify their teams based on biological sex. Teams that are designated for women will not be open for males, and this is where the dispute lies.

According to the statute, if there is a dispute about the sex of a student, the student may be requested to provide a health examination or a signed statement by the student’s personal doctor. The signed statement must confirm the student’s biological sex by meeting at least one of the following factors: reproductive anatomy, genetic makeup, or regular endogenously produced testosterone levels.

The case also includes a cisgender female high school athlete as co-plaintiff (an underage female Jane Doe), who could be potentially affected by the conditions put in place because of the law. While the case also discusses Jane’s claims as well, this article will focus on Hecox and her claims.

Claims Against the Act

In the complaint, Hecox alleged that the Act violated the Equal Protection and Due Process Clauses of the Constitution, and freedom from unconstitutional searches and seizures. Hecox sought a preliminary injunction based on the claim that the law was in violation of the Equal Protection Clause. The complaint states that the law specifically targets and discriminates against transgender women and will subject all female athletes to potential unwarranted invasive medical screenings and tests. While female athletes are the sex that is regulated, males are not explicitly listed in the law and therefore do not have to undergo the same testing or process.

Procedural History

Three different motions were made by three different parties. First, as stated above, Hecox filed for a preliminary injunction to prohibit the law from being enforced. Secondly, two student-athletes from Idaho State University, Madison Kenyon and Mary Marshall, filed a motion to intervene. Both Kenyon and Marshall competed against a transgender athlete at the collegiate level and lost to that athlete. These two athletes wish to have their concerns heard in a court of law and want to be represented in the case. Finally, the State of Idaho filed a motion to dismiss the case.

While the case may not be ready to be heard and decided on by a court of law, all three of these motions have been heard and decided on.

Motion to Intervene

The Court first looked at the Motion to Intervene. The Court used a four-part test for intervention: application of the intervention must be timely, the applicant must have a significant protectable interest relating to the action, the applicant must be situated in a way that the outcome of the case will impede the applicant’s ability to protect the interest, and the applicant’s interest must be inadequately represented by existing parties. The Court found that Kenyon and Marshall can be Intervenors to this case. The Court found that they had a protectable interest in this case (as the law was enacted to protect cisgender females for unfair competition). The Court also found that Title IX was enacted to help promote athletic opportunity between the sexes, which is a very important interest. The Court also found that Kenyon and Marshall’s interests would be impaired if this case was decided for the Plaintiff and the Act was struck down. Finally, the Court found that Kenyon and Marshall have a more defined interest than Little and the Act do. Because of this, the Court decided that the Intervenors’ interests are not adequately represented. Thus, the motion was granted.

Motion to Dismiss

The Court then looked at the Motion to Dismiss that was filed by the Defendants. The Defendant claimed that the Plaintiffs lack standing, that their claims are not ripe for review, and that the challenges against the signed Act fail as a matter of law. The motion was granted in part and denied in part. The Court found that Hecox has a legitimate injury in fact. Due to the way the Statute is stated and written, injury in fact has occurred to Hecox. With this ruling, the court denied this section of the motion. The Court also ruled that the claims brought by Hecox are proper to examine now, and that there is no need for time to pass to see how the law will be applied to athletes. Stating that the Plaintiff’s claims are ripe, the Court found that the Plaintiff’s claims are a “pure question of law” and can be adjudicated on immediately and denied this section of the motion. However, the Court is dismissing the facial challenges that are presented by the Plaintiff. By granting this section of the motion, the Court is making way for a jury or judge to determine whether the Fairness in Women’s Sports Act is legal and follows all Constitutional and Federal law.

Motion For Preliminary Injunction

Finally, the court looked at the Plaintiff’s Motion Preliminary Injunction. This motion was filed to prevent the law from being enforced until the case has been heard and a decision has been made. The Court first analyzed the Equal Protection Clause. In previous cases adjudicated by the US Supreme Court, tiers of judicial scrutiny have been developed to help determine if the Equal Protection Clause has been violated. With respect to this case, the Act needs to withstand the standard of heightened scrutiny, which means that the statute must serve an important governmental objective at that the law must be substantially related to the achievement of those objectives. The Court then looked at the likelihood of Hecox to win the case based on the merits. The Court ruled that the Act discriminates against those who are transgender for athletic participation. As the Court analyzes the Act’s potential violation of the Equal Protection Clause, there are four principles that the Court will use to help with their analysis. The Court will first look to the Defendant to justify the Act. Then the Court will consider the Act’s actual purpose. Third, the Court will consider the post hoc justifications of the Act; the court will only look at how the law is applied in the current circumstances. Finally, the Court will decide whether the Defendants justifications overcome the injury done to the Plaintiff.

The Defendant looked to justify the Act by stating that it addresses the interests of promoting sex equality, providing females the ability to showcase their skill, and by giving females an opportunity to earn a college scholarship and other awards. The Plaintiffs agreed that these are worthwhile and important government interests. However, the Plaintiffs argue that the Act does not accomplish these goals.

In August of 2020, the District Court granted a Preliminary Injunction in favor of the Plaintiffs, pending a trial on the merits of the case, which served to bar the state from enforcing HB 500. In its decision to do so, the court noted that there had been no history of transgender athletes participating in athletics in Idaho, and further no record of cisgender female athletes being displaced by said transgender athletes. Due to this lack of history, the Court argued that there is no evidence that shows the Act is necessary to promote the Government’s intentions. While there are some instances in other states, such as Connecticut, of transgender females beating cisgender females, there are no such instances in Idaho. Heightened scrutiny would require that the Act address an actual, genuine problem and not one that could potentially happen in the future. The court further noted a stark contrast between the “deeply and irreparable” harms the Plaintiffs would face and the lack of harm on the part of the Defendants in the case of a preliminary injunction, as it would simply maintain the status quo.

Justification of the Act: Equality of the Sexes

A large part of the argument for the Act surrounds itself around the competitive advantage due to the presence of testosterone. While both sides mentioned studies that help support their side of the case, the Court found deficiencies in the argument of the Defendant. Dr. Gregory Brown, the Defendant’s medical expert, stated that a large part of the competitive advantage from comes from the higher testosterone concentrations in men and adolescent boys after puberty. Dr. Brown also stated that testosterone suppression therapy cannot diminish the physiological advantage in someone who has already gone through puberty. The Court found that some of the studies that Dr. Brown used contradicted his argument. There were no arguments made or studies used that found a difference between cisgender athletes and transgender athletes who have undergone hormone suppression.

However, the Act states that there is such an advantage for transgender women who have undergone hormone therapy. The Court cited a number of factors that do not follow this conclusion. The Court stated there is a population of transgender females who never go through male puberty and do not undergo the physical and physiological changes that are associated with it. As this is the case, those transgender females have similar physical and physiological traits of cisgender females. The Court also cited the NCAA rule for transgender athlete participation in organized athletics. Since their rule was put into place in 2011, there have been no reports of any issues/problems in this area.

The Court also stated that the separation of boys’ and girls’ teams already exists in Idaho, and the Act does not prevent this from happening. According to the Idaho High School Athletic Association’s Non-Discrimination Policy, boys cannot participate on girls’ teams. The Idaho High School Athletic Association also has a transgender policy the mirrors the NCAA policy, which allows transgender females to participate in athletics after one year of hormone suppression. Since the Defendants cannot show that transgender females break the interest of sexual equality in athletics, the Act’s justifications cannot overcome the inequalities that it presents to transgender female athletes.

Justification for the Act: College Scholarships and Other Awards.

Along with sexual equality, the Act also purports to protect cisgender girls’ opportunities to earn scholarships and other awards from their athletic participation. While this is also a noble goal, there is no evidence that the law will increase the instances of this happening. As there is no evidence of a transgender female participating in women’s athletics in Idaho, there is no evidence of a transgender female receiving a scholarship in Idaho at the expense of a cisgender athlete. Along with no evidence of this happening, the Intervenors in this case have not lost their scholarships due to transgender female participation. The Court went on to state that Hecox is likely to succeed in establishing that the Act violates the Equal Protection Clause based on the lack of evidence that the Defendant has brought to the Court.

There is one interesting caveat to the law and this case. The Defendant stated that if Hecox’s health care provider states that she is a female, she would be allowed to participate in women’s sports. If this is the case, the law does not come into effect and does not matter, at least not for Hecox individually. The Act will not ensure sexual equality in athletics if transgender athletes possess a health care provider’s note stating they are a female.

The Purpose of the Act

The Court found that the Act is aimed at excluding transgender females from participating in women’s athletics. Based on the Act’s definition of biological sex, the Court concluded that the goal was to exclude transgender athletes from participation in athletics. The definition of biological sex, as stated in the Act, does not include any important factors that the medical community can agree on as it pertains to a competitive advantage between males and females. Where the NCAA and Idaho High School Athletic Association policy appear to address this issue, the Act does not and looks to solely prohibit transgender athletes from participation.

Conclusion

As mentioned, the District Court granted a preliminary injunction in favor of the Plaintiffs in this case in August of 2020. In September of 2020, Defendants appealed the granting of the injunction to the United States Court of Appeals for the 9th Circuit. Fourteen states subsequently banded together to file an amicus brief in favor of appellants and overturning the injunction in late 2020. In June of 2021, the 9th Circuit remanded the case back to the District Court for the limited purpose of determining whether Hecox’s claim is moot in light of her changed enrollment status at Boise State University. According to the Defendants, Hecox failed to take enough credits in her first two years to participate in college sports for BSU. Hecox, however, asserted in May of 2021 that she remains eligible under NCAA rules. Neither side provided sufficient evidence for their claims to the court. Thus, the 9th Circuit remanded the case back to the District Court to resolve this dispute and determine whether the issue is now moot. This is where the case currently sits.

Andrew Gatti is a Doctoral Student studying Sport Management at Troy University. Professionally, he is an Athletic Director at an all-girls Catholic high school in Los Angeles, CA. He is interested in law and the applications it has to interscholastic sports. He currently resides in San Gabriel, CA.

Michael S. Carroll is a Full Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He also serves as Online Program Coordinator for the University. He lives in Orlando, FL.

References

Fairness in Women’s Sports Act, I.C. § 33-6201-6206, July 1, 2020.

Hecox v. Little, 479 F.Supp.3d 930, (9th Cir. 2020).

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