In a ruling last week in Hecox v. Little, a liberal panel of the Ninth Circuit affirmed a district court’s ill-founded preliminary injunction against Idaho’s Fairness in Women’s Sports Act, which provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” Judge Kim McLane Wardlaw wrote the lead opinion, which Judge Ronald Gould joined in full and which Judge Morgan Christen joined in large part. Judge Christen also wrote a separate opinion.
Wardlaw displays her bias in the very first sentence of her opinion, when she translates the Act’s statement that women’s and girls’ sports teams “shall not be open to students of the male sex” into “a first-of-its-kind categorical ban on the participation of transgender women and girls in women’s student athletics.” (Emphasis added.) Wardlaw evidently can’t keep in mind that what she calls, without any clarifying explanation, “transgender women and girls” are in fact biological males. In the last sentence of her first paragraph (as well as elsewhere in her opinion), she falsely states that “[m]ale student athletes in Idaho are not subject to a [sex dispute verification] process.” But males, such as the lead plaintiff in the case, who try to take part in women’s and girls’ sports are indeed subject to that process.
Wardlaw’s opinion is replete with deceptions and irrelevancies. I’ll focus on the largest. While Wardlaw acknowledges that the Act “certainly classifies on the basis of sex,” she asserts that it “also classifies based on transgender status.” But her assertion is flat-out wrong. The Act (in her words) “categorically bans transgender women and girls from public school sports teams that correspond with their gender identity” precisely because it classifies on the basis of sex and disregards gender identity. Wardlaw also feebly distinguishes Ninth Circuit precedent that holds that the Equal Protection Clause allows public high schools to prohibit boys from playing on girls’ teams.
Wardlaw also adopts an aggressively tendentious reading of the Act’s provision for resolving disputes regarding a student’s sex. She repeatedly characterizes the process as “invasive,” “intrusive,” and “humiliating.” But the provision makes clear that it is the student’s own “personal health care provider that shall verify the student’s biological sex,” and it is amenable to a far more modest reading than Wardlaw gives it. What’s more, the injunction that Wardlaw leaves in place prohibits all means of verifying a student’s sex, not just those means that Wardlaw condemns as intrusive.