Lindsay Hecox v. Bradley Little
FOR PUBLICATION, Amended Opinion Filed June 7, 2024 (2024)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state law that categorically bans all transgender women and girls from participating in female school sports and enforces the ban with an invasive sex verification process applicable only to female athletes is subject to heightened scrutiny and likely violates the Equal Protection Clause of the Fourteenth Amendment.
Facts:
- In March 2020, Idaho enacted the Fairness in Women’s Sports Act (H.B. 500), which banned students designated as male at birth from participating on female athletic teams at public schools and universities.
- The Act applied to all levels of competition, from elementary school to college, and to any nonpublic school that competes against a public school.
- Prior to the Act, Idaho's high school and collegiate athletic associations had policies allowing transgender women to compete on female teams if they completed one year of testosterone suppression therapy.
- There was no history of any transgender athlete ever having competed under the existing policies in Idaho, nor any complaints about transgender participation.
- The Act created a sex dispute verification process, allowing any person to challenge a female athlete's sex, which would require the athlete to obtain verification from a healthcare provider based on her 'reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.'
- The sex dispute verification process applied only to athletes participating on female teams; athletes on male teams were not subject to a similar process.
- Lindsay Hecox, a transgender woman, was a student at Boise State University (BSU) and wished to try out for the women's track and cross-country teams.
- Jane Doe, a cisgender female high school athlete, feared the Act would subject her to the invasive verification process due to her masculine presentation.
Procedural Posture:
- Lindsay Hecox and Jane Doe filed a lawsuit in the U.S. District Court for the District of Idaho against Idaho state officials, seeking to enjoin the enforcement of H.B. 500.
- Madison Kenyon and Mary Marshall, two cisgender collegiate athletes, were granted permission to intervene in the case as defendants.
- Plaintiffs moved for a preliminary injunction, arguing the Act violated the Equal Protection Clause.
- The district court granted the preliminary injunction, finding that Plaintiffs were likely to succeed on the merits of their claim.
- The State of Idaho and the Intervenors (as Appellants) appealed the district court's grant of the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit remanded the case for the limited purpose of factual development regarding mootness.
- The district court found the case was not moot, and the Ninth Circuit affirmed this finding before proceeding to hear the merits of the appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an Idaho law that categorically bans transgender women and girls from participating in female school sports and subjects all female athletes to a potential sex verification process violate the Equal Protection Clause of the Fourteenth Amendment?
Opinions:
Majority - Judge Wardlaw
Yes, the Idaho law likely violates the Equal Protection Clause. A law that discriminates on the basis of transgender status and sex is subject to heightened scrutiny, and Idaho failed to provide an 'exceedingly persuasive justification' for the Act. The court reasoned that heightened scrutiny applies for two independent reasons: the Act discriminates based on transgender status, which the Ninth Circuit treats as a quasi-suspect class, and it discriminates based on sex by subjecting only female athletes to an invasive sex verification process. The court concluded the Act is not substantially related to the state's asserted interest in promoting sex equality and athletic opportunities for women. The state provided no evidence that a categorical ban was necessary, especially given that existing policies already regulated transgender participation and there was no history of transgender athletes displacing cisgender women in Idaho. Furthermore, the invasive and overbroad sex verification provision demonstrated a profound lack of 'means-ends fit,' undermining the state's purported objective and instead appearing designed to exclude a politically unpopular group.
Analysis:
This decision solidifies the Ninth Circuit's position that laws discriminating against transgender individuals are subject to heightened scrutiny under the Equal Protection Clause. By treating anti-transgender discrimination as a form of sex discrimination, the court aligns constitutional analysis with the Supreme Court's statutory interpretation in Bostock v. Clayton County. The ruling establishes a significant precedent that challenges the constitutionality of similar categorical bans on transgender athletes, requiring states to provide substantial, fact-based evidence rather than relying on speculation or stereotypes to justify such exclusionary policies. This makes it more difficult for states within the Ninth Circuit to enact and defend broad prohibitions on transgender participation in sports.
