Judge Blocks Idaho Law Limiting Sports Participation by Transgender Females

By Mark Walsh — August 17, 2020 3 min read
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A federal district judge on Monday issued an injunction blocking an Idaho law that bars transgender females from participating on girls’ or women’s school athletic teams, ruling that the law likely violates the U.S. Constitution’s equal-protection clause.

“The court recognizes that this decision is likely to be controversial,” U.S. District Judge David C. Nye wrote. “While the citizens of Idaho are likely to either vehemently oppose, or fervently support, the [Fairness in Women’s Sports] Act, the Constitution must always prevail.”

Nye said the Idaho statute, signed into law by Gov. Bradley Little in March, discriminates on the basis of transgender status. He said the case must go to trial on the challengers’ claims that the law violates equal protection as well as Title IX of the Education Amendments of 1972, which bars sex-based discrimination in federally funded educational programs.

But his 87-page decision in Hecox v. Little analyzed many of the arguments raised in the national debate over transgender girls and women participating in female sports and largely sided with the law’s challengers.

“Ultimately, the court must hear testimony from the experts at trial and weigh both their credibility and the extent of the scientific evidence,” Nye said. “However, the incredibly small percentage of transgender women athletes in general, coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they have undergone hormone suppression in particular, suggest the act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.”

The challenge to Idaho’s law was filed by the American Civil Liberties Union on behalf of Lindsay Hecox, a transgender track athlete at Boise State University, and a cisgender female student, identified in court papers as Jane Doe, who plays on the girls’ soccer team at Boise High School, and is concerned about being subjected to invasive “sex verification” testing under the new law, their suit says.

Nye said the law’s sex-verification dispute process “creates a means that could be used to bully girls perceived as less feminine or unpopular and prevent them from participating in sports.”

The law is being defended by state officials with the support of President Donald Trump’s administration, which filed a friend-of-the-court brief in the Idaho case in June. The administration emphasized in its brief that it believed the law passed muster under the equal-protection clause and did not discuss Title IX.

But Nye noted that the U.S. Department of Education’s office for civil rights recently issued a letter in a Connecticut case about transgender athletes that takes the position that allowing transgender girls to participate in girls’ high school athletics discriminates against cisgender female athletes under Title IX.

“The OCR letter is ... of questionable validity given the [U.S.] Supreme Court’s recent holding” in Bostock v. Clayton County, Ga., Nye said, referring to the high court’s June 15 decision that discrimination based on sex under the main federal employment-discrimination law includes discrimination based on a person’s transgender status.

The judge did allow two cisgender female athletes to intervene in the case to make their arguments that they would lose out on competitive and scholarship opportunities if they are forced to compete against transgender female athletes.

Nye, citing evidence and arguments submitted in the case, said it appeared unlikely that allowing transgender female athletes to participate in girls’ and women’s sports would substantially displace cisgender female athletes.

The judge noted that the National Collegiate Athletic Association and high school sports authorities in most states have permitted transgender females to participate in female sports, often under certain conditions such as requiring that they suppress their testosterone levels for a specified time prior to competing.

“That the act essentially bars consideration of circulating testosterone [levels] illustrates the legislature appeared less concerned with ensuring equality in athletics than it was with ensuring exclusion of transgender women athletes,” Nye said.

Because of the COVID-19 pandemic, the conference that Boise State participates in recently postponed fall sports, while tryouts for soccer at Boise High have also been postponed. Still, the judge indicated the injunction will allow Hecox and Doe to participate in any training programs for their sports that may occur this fall.

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A version of this news article first appeared in The School Law Blog.