Bench Memos

Law & the Courts

Ill-Founded Injunction Against Idaho’s Fairness in Women’s Sports Act

Idaho’s Fairness in Women’s Sports Act, enacted in March, provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.”

In a ruling on Monday in Hecox v. Little, federal district judge David C. Nye—who I’m sorry to see is a Trump appointee—issued a preliminary injunction that prevents Idaho from enforcing the Act pending trial on the merits. In his 87-page opinion, Nye concludes that the Act likely violates the Equal Protection Clause of the Fourteenth Amendment. Nye’s reasoning strikes me as badly confused.

The case involves separate claims by two plaintiffs. Let’s take them one at a time.

1. Lindsay Hecox is a male who identifies as female. He attends Boise State University and wants to try out for BSU’s women’s cross-country team in the fall of 2020 and for its women’s track team next spring.

Nye asserts that the Act “excludes transgender women from participating on women’s sports teams.” In fact, it excludes all men, including those very few who identify as women, from doing so. Yet somehow Nye maintains that “the Act on its face discriminates between cisgender athletes, who may compete on athletic teams consistent with their gender identity, and transgender women athletes, who may not compete on athletic teams consistent with their gender identity.” (Emphasis added.) He thus finds “inescapable” the manifestly incorrect “conclusion that the Act discriminates on the basis of transgender status.”

On this same misunderstanding, Nye purports to distinguish a longstanding circuit precedent, Clark v. Arizona Interscholastic Ass’n (1982), that held that barring boys from playing on girls’ interscholastic volleyball teams in Arizona high schools did not violate the Equal Protection Clause. In addition, Nye wrongly contends that “women and girls who are transgender”—by which he means men and boys who identify as female—“will not be able to participate in any school sports.” But the men’s and boys’ teams remain open to them. Their desire not to be on such teams, and the “adverse mental health outcomes” that they would allegedly endure from being on such teams, don’t alter that legal reality.

2. Jane Doe is the pseudonym of a 17-year-old girl who intends to play on her high school girls’ soccer team this fall. “Because most of her closest friends are boys, she has an athletic build, rarely wears skirts or dresses, and has at times been thought of as ‘masculine,’ Jane worries that one of her competitors may dispute her sex.”

How it is that a competitor would know who Jane’s friends are, or what she wears off the field, goes unexplained. Nor it is clear why anyone would find it unusual that a female athlete “has an athletic build.” Further, while Jane has previously competed on the girls’ soccer and track teams at her high school, there is nothing in the opinion to indicate that anyone has previously questioned her sex.

The Act provides:

A dispute regarding a student’s sex 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 (1) or more of the following: the student’s reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels. The state board of education shall promulgate rules for schools and institutions to follow regarding the receipt and timely resolution of such disputes consistent with this subsection.

Nye contends that this provision “burdens all female athletes with the risk and embarrassment of having to ‘verify’ their ‘biological sex’ in order to play women’s sports. But it is the student’s own “personal health care provider” who “shall verify the student’s biological sex.” Why should that involve “embarrassment”? This provision also seems capacious enough for a doctor to rely on his most recent physical exam to attest the student’s sex. Further, the quantum of any burden would depend heavily on the state board of education’s dispute-resolution rules—rules that haven’t been yet issued.

None of this stops Nye from racing to the conclusion that this provision “triggers heightened scrutiny by singling out members of girls’ and women’s teams for sex verification.” But it’s precisely because females have no general physical advantages over males that the Act doesn’t bar females from being on men’s and boys’ teams. Because both males and females can be on such teams, it would be pointless to verify the sex of a player on those teams. So the “singling out” comports perfectly with the Act’s stated purpose of “providing opportunities for female athletes.”

Two other brief points that illustrate Nye’s pervasive one-sidedness:

First, in order to lower the burden that plaintiffs have to meet, Nye contends that an injunction would preserve the “status quo” that was “the policy in Idaho prior to [the Act’s] enactment.” But under elementary principles of federalism, states have broad authority to enact laws, and it’s the status quo that the Act put in place that Nye’s injunction disrupts. (Indeed, Nye elsewhere finds it significant that the “legislative record [of the Act] reveals no history of transgender athletes ever competing in sports in Idaho.” That would indicate that the Act simply codified the status quo, and that it’s Hecox who seeks to disrupt it.)

Second, Nye’s opinion is replete with transgender rhetoric and with concerns that what he calls “misgendering”—identifying biological males as male and biological females as female—is supposedly “degrading, mean, and potentially mentally devastating to transgender individuals.”

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