Ninth Circuit upholds injunction in favor of Idaho transgender athletes

The U.S. Ninth Circuit Court of Appeals has upheld an injunction against an Idaho law that prohibits transgender athletes from participating in student athletics.

The court’s decision, announced Thursday, says the law likely infringes upon the rights of transgender students under the Equal Protection Clause of the U.S. Constitution. While the legal case works its way through the courts, the law is being held in abeyance.

Judge Kim Wardlaw wrote that the district court judge ruled correctly because the act targets only female athletes, and because it subjects them to “an intrusive sex verification process” if their gender was challenged. Idaho also failed to show that the law improved gender equality, Wardlaw wrote, calling the Idaho law Aa “’desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

The Idaho law, which bans transgender athletes from engaging in competitive sports that do not align with their actual biological gender, reflects a national legal battle over the rights of female athletes and the males that seek to destroy fair competition by competing in their category, which is happening with great frequency across the country.

The case was brought by the ACLU of Idaho on behalf of Lindsay Hecox, a transgender student at Boise State University who aspired to participate in cross-country and club soccer, and Kayden Hulquist, a female student from Boise High School who wants transgenders to be able to compete against girls and women. The ACLU calls Kayden a cisgender, a term that some say is intended to diminish the authenticity of women in an effort to not hurt the feelings of transgenders.

“The Act bars all transgender women and girls from participating in, or trying out for, public school female sports teams at every age, from primary school through college, and at every level of competition, from intramural to elite teams. It also provides a sex dispute verification process whereby any individual can “dispute” the sex of any female student athlete in the state of Idaho and require her to undergo intrusive medical procedures to verify her sex, including gynecological exams. Male student athletes in Idaho are not subject to a similar dispute process,” the Ninth Circuit panel ruled.

“The panel held that the district court did not abuse its discretion when it found, on the record before it, that plaintiffs were likely to succeed on the merits of their claim that the Act violates the Equal Protection Clause of the Fourteenth Amendment.”

Because the Act subjects only women and girls who wish to participate in public school athletic competitions to an intrusive sex verification process and categorically bans transgender women and girls at all levels, regardless of whether they have gone through puberty or hormone therapy, from competing on female, women, or girls teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, the panel held that plaintiffs were likely to succeed on the merits of their equal protection claim, the decision claimed.

Alaska’s judge on the Ninth Circuit, Morgan Christen, dissented in part and concurred in part with the majority:

Judge Christen, who is female, wrote that given the categorical sweep of the ban on transgender students, the medical consensus that circulating testosterone rather than transgender status is an accurate proxy for athletic performance, and that because of the unusual and extreme nature of the Idaho law’s sex verification requirements, the district court did not abuse its discretion by granting the injunction.

“Disagreeing with the majority in part, Judge Christen wrote that she read the sex dispute verification provision to apply to any student, male or female, who participates on women’s or girls’ athletic teams. Accordingly, it is the team an athlete chooses to join that dictates whether they are subject to the statute’s verification process, not the athlete’s sex. Judge Christen also wrote that the district court’s injunction lacked specificity as required by Federal Rule of Civil Procedure 65(d)(1) because it failed, among other things, to specify whether it was enjoining all provisions of the Act, or only some of them, or whether it was enjoining any specific provision of the Act in its entirety or only as applied to certain classes of individuals. Finally, Judge Christen stated that the injunction was overbroad to the extent that it applies to transgender women who are not receiving gender-affirming hormone therapy,” the decision said.

The Alaska Board of Education is considering a regulation that does not bar athletes from competing but says they must compete in their biological gender.