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Idaho trans student-athlete ban is up to the judges now

An inside look at Monday’s appeal hearing, which opened a week in which inclusion won two legislative fights, in Kansas and Louisiana.

Lindsay Hecox on a track.
Lindsay Hecox
ACLU/Joshua Roper

The case of Hecox v. Little went before the 9th U.S. Circuit Court Appeals Monday and is now in the hands of a 3-judge panel. No timetable has been set for when a final decision will be reached.

Hecox is Lindsay Hecox, an out transgender student-athlete who took this semester off from Boise State University following the launch of this intense court battle last year; Little is Idaho Gov. Brad Little, who marked Trans Day of Visibility last year by signing two transphobic bills into law.

The lawsuit centers on Idaho’s controversial trans student-athlete ban HB500 which was passed in March 2020 and held over by a federal injunction in August 2020. The law has been viewed as a catalyst for a chain reaction of similar legislation in 30 states since its passage.

Monday’s 45-minute hearing came between a pair legislative decisions that stopped similar bills in two other states. A few hours earlier, the Kansas State Senate upheld Governor Laura Kelly’s veto of a transgender student-athlete ban by a single vote. Then on Tuesday, Louisiana lawmakers rejected a similar measure in committee, also by a single vote.

Attorneys representing the state of Idaho and the Alliance Defending Freedom maintain that the measure is necessary to uphold protections codified under Title IX. They also answered certain conclusions raised in the injunction ruling by U.S. District Court Judge David Nye last August.

Nye stated in his ruling:

In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue but, as explained above, the constitutional rights of every girl and woman athlete in Idaho. Because the Court finds Plaintiffs are likely to succeed in establishing the Act is unconstitutional as currently written, it must issue a preliminary injunction at this time pending trial on the merits.”

At issue are key provisions of the law that would remove opportunities for transgender women and girls to compete which are currently granted by both the Idaho High School Activities Association and the NCAA. Nye also cited the provision in the law which would open any girl or woman student-athlete to invasive physical and genital examination to prove what sex they are.

Idaho’s HB500 faced a virtual hearing in the 9th Circuit Court of Appeals. Top row (l to r): Senior U.S. Circuit Judge Andrew Kleinfeld, U.S. Circuit Judge Kim Wardlaw, U.S. Circuit Judge Ronald Gould. Bottom row (l to r) ADF attorney Roger Brooks, Idaho Deputy AG Scott Zanzig, ACLU attorney Chase Strangio.
U.S. Court of Appeals for the Ninth Circuit

“To suggest that this was pure animus against transgender persons and that is just not right and not fair,” Idaho Deputy Attorney General Scott Zanzig told the panel. “This is just a tough policy choice that many respectful voices differ on. Idaho has chosen one way and the equal protection clause should not dictate its policy choices.”

The deputy director for transgender justice at the American Civil Liberties Union, Chase Strangio, represents both Hecox and a cisgender high school student from Idaho who for privacy purposes is going by the name Jane Doe. Strangio directly disputed the deputy A.G.’s claims. “Opponent arguments that the law does not discriminate on the basis of trans status cannot be reconciled with the text of the law and the context of its passage,” he noted. “What the law does is distinguish between cisgender athletes who can compete in sports consistent with their gender identity, and transgender women and girls who cannot.”

“Ultimately, this is a law that harms all women and girls,” Strangio continued.

One member of the panel questioned that contention. Senior U.S. Circuit Judge Andrew J. Kleinfeld noted that since boy’s and men’s teams are not affected that no student-athlete is banned from competition. “They’re not barred,” Kleinfeld said. “Anybody can play on the boys’ team whether they are transgender or not.”

Strangio referred the judge to the federal district court’s citation of additional testimony from Stanford University child and adolescent psychiatry fellow and researcher Dr. Jack Turban, who stated that the option Kleinfeld described would be untenable. “It is unfeasible to force a trans girl to complete on a team for boys,” Strangio quoted. “It would undermine her medical treatment. It would be substantially humiliating and not a viable option.”

Kleinfeld also questioned if the law was moot because Hecox took a leave of absence from Boise State. Strangio noted that she is planning to return to Boise State this fall. The judge also questioned if Doe, who joined the suit citing Fourth Amendment concerns regarding invasion of privacy, should not have standing in the case, claiming that her concerns are speculative. Strangio responded that Doe has standing because of the gender verification procedures which are contained within the law.

Watch the entire hearing on YouTube: