Idaho's transgender sports ban challenged in federal court

The law, the first of its kind in the nation, prohibits transgender athletes from competing in sports consistent with their gender identity.
By Julie Moreau

Lindsay Hecox, 19, a college freshman, said she became enamored with running in high school.

“Something about it clicked with me,” she told NBC News. “It’s just you on the trail and your own mind to push yourself harder.”

Hecox was a varsity athlete in high school and said “it was the best experience” she had during those formative teen years.

Lindsay Hecox.ACLU

“It was my whole friend group,” she said. “It helped me focus so I could keep my grades up.”

She came out as transgender after she graduated in June 2019 and transitioned in the summer. Hecox is now a student at Boise State, but she will not be able to compete on the university’s cross-country team this fall because of a new state law.

Idaho’s Fairness in Women’s Sports Act, also known as House Bill 500, was signed last month by Republican Gov. Brad Little and prohibits transgender athletes from competing in sports consistent with their gender identity. Idaho is the first state in the nation to enact such a ban. On the same day, March 30, Little also signed a bill into law that prohibits trans people from changing the sex listed on their birth certificates.

For Hecox, the sports law, which is set to take effect July 1, came as a “devastating” blow to her university athletics hopes.

“I was hoping to have the experience of trying out for the team, getting on the team hopefully and meeting all the teammates I would have,” she said. “I don’t have that opportunity now.”

A federal lawsuit filed Wednesday by two civil rights groups on behalf of Hecox and another student athlete could potentially change that. The American Civil Liberties Union and the Legal Voice contend that the Idaho law violates both the U.S. Constitution and Title IX, which bars sex discrimination in any educational program that receives federal funding.

“We’re suing because HB 500 illegally targets women and girls who are transgender and intersex and subjects all female athletes to the possibility of invasive genital and genetic screenings,” ACLU attorney Gabriel Arkles said.“In Idaho and around the country, transgender people of all ages have been participating in sports consistent with their gender identity for years. Inclusive teams support all athletes and encourage participation — this should be the standard for all school sports.”

The second plaintiff in the suit is a 17-year-old cisgender (nontransgender) girl at Boise High School. Known just as Jane Doe in court documents, the high school junior is concerned about being required to produce proof of her “biological sex” under the new law.

The law stipulates that in cases where a student athlete’s sex is in dispute, a dispute “shall be resolved by the school or institution by requesting that the student provide a health examination and consent form or other statement signed by the student's personal health care provider that shall verify the student's biological sex. The health care provider may verify the student's biological sex as part of a routine sports physical examination relying only on one or more of the following: the student's reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.”

The suit claims that his requirement is “based on criteria that intentionally disqualify all women and girls who are transgender and many who are intersex, and which threaten to intrude upon the privacy and bodily autonomy of all women and girls engaged in student athletics.”

“This law is not just out of step with science and prevailing norms of inclusion adopted by athletic associations across the country and around the world, it is unconstitutional and violates federal law,” the suit continues.

In an interview after the bill’s signing, Little said he supported the measure because when it comes to sports, cisgender girls should have the “right to participate without having to be concerned about who they’re competing with.”

Republican Rep. Barbara Ehardt, one of the bill’s sponsors, took to Facebook after the bill’s signing to defend the measure, saying it’s “not anti anything,” rather it’s “pro opportunities for biological girls & women.”

“As both a former Division I Women’s Basketball player and Division I Women’s basketball Coach for over 15 years, I know first hand that as females, we cannot compete against the inherent physiological advantages that boys & men have,” she wrote. “Title IX, as well as the women who went before me and helped to pave the way forward, changed my life. I have always felt it incumbent on me to do the same for those who followed.”

While Idaho is the first state to enact this type of transgender sports measure, several other states have considered similar measures during the 2020 legislative session. Many of the bills have died or are on hold due to legislative recesses because of the coronavirus pandemic. However, Arkles said he is still watching similar bills in Louisiana, Arizona, Alabama and Tennessee. Louisiana’s SB 172 and Arizona’s HB 2706 employ much of the same language as the Idaho law.

In Alabama, Republican Rep. Chris Pringle, whose district includes parts of Mobile, introduced the Gender Is Real Legislative (GIRL) Act, which would ban K-12 public schools from participating in athletic events where “athletes are allowed to participate in competition against athletes who are of a different biological gender, unless the event specifically includes both biological genders.” A similar bill, HB 1572, is still alive in Tennessee.

“Anytime that a bill is successful somewhere we are concerned that our opponents will see it’s getting some traction and increase their efforts to pass it elsewhere,” Arkles said.

That's why the suit is so important, he added. “If the first law of its kind is stuck down quickly and resoundingly that will also send a message.”

The issue of athletic participation is also playing out in Connecticut courts, where three cisgender female high school athletes are suing the Connecticut Interscholastic Athletic Conference and several local boards of education over a policy that allows students to participate in sports based on their gender identity. The three athletes argue they are being forced to compete on unequal terms. The conference, however, has said its policy complies with state law.

The Department of Justice sided with the cisgender female athletes in a “statement of interest” filed in the case. The DOJ argued that the conference's policy “deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX."

As for Hecox, she said she wants supporters of laws like Idaho’s to know that “the value of athletics for trans people is just as important as for anyone else.”

“I’m just an athlete who happens to be trans. There is nothing inherently different about me,” she said.

She also said the ability to participate in sports goes far beyond competition.

“We have a lot of issues to deal with, and anytime you’re on a team you have friends there with you helping you get better times, but also being there for moral support,” she said.

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