Block on Idaho Transgender Sports Ban Upheld by 9th Cir. (1)

The Ninth Circuit Thursday upheld a ruling that blocked implementation of Idaho’s ban on transgender women and girls participating in school sports.

The Idaho law would have kept 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.

Idaho Gov. Bradley Little (R) signed HB 500 into law March 30, 2020, making Idaho the first state to categorically bar transgender and intersex athletes from competing in women’s sports.

The law includes a verification process under which any individual can “dispute” the sex of any female student athlete in Idaho and require her to undergo intrusive medical procedures to verify her sex, including gynecological exams. Male student athletes in Idaho aren’t subject to a similar dispute process, two judges said.

A federal district court didn’t abuse its discretion when it preliminarily enjoined the law in 2020, holding that it likely violated the equal protection clause of the 14th Amendment, the US Court of Appeals for the Ninth Circuit said.

The law is subject to heightened scrutiny, requiring the state to show an “exceedingly persuasive justification,” because it classifies on the basis of both sex and gender identity, the appeals court said.

But the state failed to offer any evidence demonstrating that the law is substantially related to its asserted interests in sex equality and opportunity for women athletes, the appeals court said.

Additionally, the law’s sweeping prohibition on transgender female athletes in Idaho—encompassing all students, regardless of whether they have gone through puberty or hormone therapy, and without any evidence of transgender athletes displacing female athletes in Idaho—is overbroad, the court said.

Since passage of the Idaho law, 20 other states have passed laws limiting the participation of transgender students in women’s athletics. However, no other state appears to have enacted an enforcement mechanism for those restrictions like the sex dispute verification process in the act, the court said.

More than 1.6 million adults and youth identify as transgender in the United States, or roughly 0.6% of Americans who are 13 years old or older, the court said.

Judge Kim McLane Wardlaw wrote the majority opinion, joined by Judge Ronald M. Gould.

Judge Morgan Christen partly concurred and partly dissented, agreeing the district court didn’t abuse its discretion by finding the claim likely to succeed and granting preliminary injunctive relief.

However, Christen said the sex dispute verification provisions apply to any student who participates on women’s or girls’ athletic teams. She also said the scope of the injunction isn’t clear because it doesn’t specify the eligibility rules applicable while the act is preliminarily enjoined.

Cooley LLP and others represented the plaintiffs. The Idaho Attorney General’s office represented Little and other state officials.

The case is Hecox v. Little, 9th Cir., No. 20-35813, 8/17/23.