Does Transgender Sports Participation Legislation Serve the Public Interest?

Within the past three years, 21 states have passed laws requiring high school and college athletes to participate in school sports in accordance with their gender at birth.

One of those states — Idaho — passed the Fairness in Women’s Sports Act, which like many of the new laws was enacted in the name of protecting biological female athletes. It acts as a ban on transgender women from participating on any public-school female sports team from the primary school level through college and at every competition level. Transgender women are still allowed to compete against males, or the sex they were assigned at birth.

With more than 1.6 million U.S. adults and youths — roughly 0.6 percent of the American population — identifying as transgender, and more states enacting new laws prohibiting transgender athletes from competing in sports, it was inevitable that questions regarding the legality of such laws would wind up in the courts. In a case that could go a long way toward clarifying the legality of such new laws, the United States Court of Appeals for the Ninth Circuit recently reviewed Idaho’s Fairness in Women’s Sports Act in Hecox v. Little, 2023 WL 5283127.

Act immediately challenged

In March 2020, Idaho enacted the Fairness in Women’s Sports Act, Idaho Code §§ 33-6201-06 (2020) — a first-of-its-kind categorical ban on the participation of transgender women and girls in women’s student athletics. At the time, Idaho had no history of transgender women and girls participating in competitive student athletics, even though Idaho’s interscholastic athletics organization allowed transgender girls to compete on female athletic teams under certain specified conditions.

The Act, however, barred all transgender girls and women from participating in, or even 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. The Act 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. The Act did not subject male student athletes in Idaho to a similar dispute process.

In April 2020, Lindsay Hecox, a transgender woman at Boise State University, wished to compete on the BSU women’s track and cross-country teams, and Jane Doe (“Doe”), a cisgender woman (meaning she identifies with the gender she was assigned at birth) who plays on high school varsity teams and feared that her sex would be “disputed” under the Act due to her masculine presentation, filed a lawsuit against Idaho governor Bradley Little, Idaho superintendent of public instruction Sherri Ybarra, and various school officials at both the high school and collegiate levels.

Hecox and Doe sought a declaratory judgment that the Act violates Title IX and the United States Constitution, including the Equal Protection Clause, and sought preliminary and permanent injunctions against the Act’s enforcement. The pair also sought an award of costs, expenses and reasonable attorneys’ fees.

The District Court issued a preliminary injunction after it found Hecox and Doe would suffer irreparable harm absent the injunction. Idaho appealed to the Ninth Circuit.

Appeal arguments

On appeal, Idaho argued that the District Court erred in finding the Act violated the Equal Protection Clause, since it did not discriminate based on an individual’s gender. In rejecting Idaho’s argument, the Ninth Circuit found that the Act discriminated against transgender women because its text, structure, purpose and effect demonstrated a clear categorical ban on transgender women from public school sports teams based on the individual’s gender identity. In support of its decision, the Ninth Circuit ruled the Act’s discussion of the advantage male hormones have over females in the athletic field, and its plain language dividing sports into categories based on biological sex illustrated by the Act, were designed to ban transgender women from biologically female sports.

Further, the Ninth Circuit held that the plain language of the sex verification process restricted examination to an individual’s reproductive anatomy, genetic makeup or normal endogenously produced testosterone levels, all things which transgender females will not or cannot medically alter.

Finally, the Ninth Circuit ruled that the Act’s definition of “biological sex” was an oversimplification that disregarded the “complicated biological reality of sex and gender.” Since the use of biological sex was so associated with the disfavored group — transgender athletes — discrimination based on such criteria is discriminatory against the disfavored group.

Justifying discrimination

It is important to note that just because a law, rule or practice is found discriminatory does not mean that it violates the Equal Protection Clause of the Constitution. The state can still justify rules that discriminate against a particular group or class if it can pass the court’s scrutiny. There are three tests that the courts will use to evaluate laws that discriminate, based on the disfavored group or class.

Since the Ninth Circuit found that the class discriminated against under the Act was transgender female athletes, it held that a heightened or intermediate scrutiny was the appropriate test. Under a heightened or intermediate scrutiny test, which is the test used by the courts in determining the legality of sex-based discrimination, the Ninth Circuit ruled that for the Fairness in Women’s Sports Act to be constitutional, Idaho had to demonstrate that the Act served important governmental objectives and that the discriminatory means used were substantially related to achieve an important public interest.

Idaho argued that providing athletic opportunities to females to obtain recognition, accolades, college scholarships, and other benefits was an important public interest advanced by the Act. The Ninth Circuit disagreed and found the district court correctly determined that both the categorical ban of transgender women and girls from all female athletic teams, and the sex verification process, were not substantially related to the stated objectives.

In support of this conclusion, the Ninth Circuit first held that Idaho’s citing of prior decisions by the Ninth Circuit — where high schools were constitutionally permitted to keep males from participating on female teams to further the objective of redressing past discrimination against women in athletics and promoting equality of opportunity between the sexes — was misplaced. In particular, the Ninth Circuit held that there was no scientific evidence to suggest a categorical ban would promote sex equality or protect athletic opportunities for females, there was little evidence to suggest transgender women displaced cisgender women in sports opportunities, and the Act’s true objectives promoted the exclusion of transgender women from sports entirely, rather than promote the state’s purported objectives. In addition, the Ninth Circuit court found that the sex verification process under the Act was a humiliating and intrusive burden, and its purpose was to exclude transgender women from female athletics rather than promote the Act’s stated objectives. The Ninth Circuit further noted that the sex verification process under the Act would also harm cisgender female athletes, because it was applicable to them simply by virtue of playing sports in Idaho.

In conclusion, the Ninth Circuit simply upheld the injunction sought by Hecox and Doe preventing the enforcement of the Act and reestablished the pre-Act status quo, meaning athletics administrators who were governed by the NCAA’s policies for college athletes or the Idaho High School Activities Association policies for K-12 athletics must go back to following their pre-2020 polices.

What can state legislators and athletic administrators learn from the Ninth Circuit Court’s decision in Hecox v. Little, 2023 WL 5283127?

First, the Ninth Circuit makes it clear that under the 14th Amendment’s Equal Protection Clause, discrimination based on transgender status is a gender classification subject to a heightened or intermediate scrutiny test. Under this test, any state that wishes to pass a law similar to Idaho’s Fairness in Women’s Sports Act must be able to demonstrate that the legislation serves important governmental objectives and that the discriminatory means used are substantially related to achieve an important public interest — a demanding standard for states to meet if they want to enact such policies in the future.

Second, while the Ninth Circuit found that the law that discriminated based on transgender status is a gender classification subject to a heightened or intermediate scrutiny test, the court also ruled that it was not deciding the larger questions of whether any restriction on transgender participation in sports violates equal protection. Therefore, while a crucial decision for both transgender athletes and cisgender women, the issue of whether all bans on transgender women from participating in female sports is still subject to legal challenge. The key, however, is that state legislators and athletics administrators now know the standard by which such laws will be reviewed. This is important, because most of the states that have imposed prohibitions on transgender athletes have done so, like Idaho, under the guise of protecting female athletes.