Law & Courts

Appeals Court Weighs Idaho Law Barring Transgender Female Students From Girls’ Sports

By Mark Walsh — May 04, 2021 4 min read
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A federal appeals court panel heard arguments Monday in a case about Idaho’s law barring transgender females from girls’ and women’s school sports. The case is a major skirmish in a nationwide conflict over the rights of transgender students and those who feel threatened by their participation in sports or their using school facilities consistent with their gender identity.

“Some of this stuff seems silly,” Senior U.S. Circuit Judge Andrew J. Kleinfeld said during the arguments in Hecox v. Little, referring to his concerns about the legal standing of one challenger to the Idaho law—a cisgender female high school student who fears she might face sex-verification testing to play sports because of her masculine appearance.

Kleinfeld was one of three members of a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reviewing a decision by a federal district judge in Idaho last August that blocked the state law, ruling that it likely violates the 14th Amendment’s equal-protection clause.

The suit was brought by the American Civil Liberties Union on behalf of the female student (identified in court papers as Jane Doe) who plays soccer on the girls’ team at Boise High School, as well as by Lindsay Hecox, a transgender track athlete currently on leave from Boise State University.

“The entirety of the legislative debate surrounding the law and the singular effect of the law is to exclude transgender women and girls, and only trans women and girls, from sports altogether,” Chase Strangio of the ACLU said during the 40-minute oral argument conducted remotely.

Kleinfeld said he thought the law’s purpose “was to let girls not have to compete with boys because the boys tend to be bigger and stronger and that doesn’t give the girls a fair shot at winning.”

Kleinfeld also suggested Hecox’s challenge of the Idaho law was moot because she was no longer attending Boise State. And he said Doe, the high school student, had highly speculative concerns about being subjected to sex verification. (However, the Idaho law does allow anyone to dispute the sex of participants in girls’ and women’s sports, which could lead to testing that the ACLU calls invasive.)

Kleinfeld, 75, said that the girls he knew in high school mostly had boys as friends and wore pants instead of dresses.

“Gee, you hardly see any women in dresses except religious women,” the judge said. He discounted Doe’s worries about facing sex verification.

“It’s not like East German athletes during the Soviet era,” Kleinfeld said. “Nobody’s ever suggested [Doe] is not entirely female.”

Strangio said Hecox is planning to return to Boise State and try out for the track team again, while Doe has a legitimate concern about the sex-verification procedures of the Idaho statute.

Defenders say the Idaho law represents ‘a tough policy choice’

Kleinfeld heard the case along with two other members of the Pasadena, Calif.-based panel, Judge Ronald M. Gould and Judge Kim McLane Wardlaw. Gould did not speak during the argument. Wardlaw asked a few probing questions of the two lawyers who argued in defense of the Idaho law, suggesting that one provision of the law “would appear to target transgender” athletes.

A supporter for the transgender community holds a trans flag in front of counter-protesters to protect attendees from their insults and obscenities at the city's Gay Pride Festival in Atlanta on Oct. 12, 2019.
A transgender rights supporter holds a flag at Atlanta's Gay Pride Festival in October 2019.
Robin Rayne/AP

W. Scott Zanzig, a deputy attorney general of Idaho, said there was no “invidious intent” by the Idaho legislature to harm transgender athletes with this law.

“This is not animus at work here,” Zanzig said. “This is just a tough policy choice that many respected voices differ on. Idaho has chosen one way, and the equal-protection clause should not dictate its policy choices.”

Several other states have enacted or are considering similar laws meant to bar transgender female athletes from girls’ and women’s sports.

Roger G. Brooks, a lawyer with the Alliance Defending Freedom, also defended the law before the panel. The Scottsdale, Ariz.-based conservative legal organization represents two Idaho cisgender female athletes who intervened in the suit and say they have repeatedly raced and lost in cross country to a transgender female athlete.

Brooks noted that the National Collegiate Athletic Association has policies permitting transgender female athletes to participate in women’s sports after one year of testosterone suppression therapy.

But such a policy, which the Idaho High School Activities Association also has, does not result in “biological males” lowering their testosterone levels to those of “biological females,” Brooks said.

Kleinfeld suggested that a transgender female college athlete who was born “biologically male” and had one year of testosterone suppression still “had 19 years of building a bigger body, bigger bones, bigger muscles, as typically happens with males.”

Brooks quickly agreed with the judge.

“There are bells you can’t unring when it comes to going through male puberty,” Brooks said.

One voice the 9th Circuit panel did not hear from Monday was the federal government. President Donald Trump’s administration had filed a brief in the appeals court last year supporting the Idaho law. In February, President Joe Biden’s administration withdrew that brief. The new administration has signaled its support for transgender students, though it apparently did not file a full brief of its own in the Idaho case.

A decision by the 9th Circuit panel is expected to take several months.

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