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Idaho transgender athlete ban heads back to Ninth Circuit

The ban demands something of women athletes that isn't required for men: testosterone and chromosomal screenings to verify their gender.

(CN) — The topic of transgender rights returned to the Ninth Circuit on Tuesday, when lawyers for Boise State athlete Lindsay Hecox fought to keep an Idaho bill barring transgender women from participating in sports and requiring women to undergo invasive gender-affirming examinations blocked.

In March 2020, Idaho Governor Brad Little signed the Fairness in Women’s Sports Act into law, which prohibited transgender women from participating in women’s sports while forcing female athletes to undergo testosterone and chromosomal screenings to verify their gender — something not demanded of male athletes.

Idaho was the first state to ban transgender and intersex athletes from women’s sports, but since then 17 states have followed suit including neighboring Utah, Arizona and Montana. Such laws made it impossible for student athletes like Hecox to try out for track and cross country at Boise State, prompting her and another 17-year-old athlete to sue Little and other educational representatives.

Hecox claims before the ban, rules required transgender girls — both in K-12 and on the National Collegiate Athletic Association level — to complete one year of hormone treatment related to gender transition before competing on a girls’ team.

“There were no reported issues with the administration of that rule or its effect on athletics in Idaho,” Hecox says in her complaint.

In August 2020, Chief U.S. District Judge David Nye granted Hecox’s request for a preliminary injunction, finding it is not just the constitutional rights of transgender girls and women athletes at issue but the constitutional rights of every female athlete in Idaho.

Little appealed in September 2020 along with intervenors Madison Kenyon and Mary Marshall, athletes from Idaho State University who had competed against transgender athletes before.

In her appellate brief, however, Hecox told the Ninth Circuit she did not make Boise State’s cross country team and had temporarily withdrawn from school. Hecox said she planned to re-enroll in 2022 after achieving in-state residency and in June 2021, the panel remanded the case to determine whether Hecox’s claims were moot in light of her changed enrollment status.

On July 18, Nye found the case was not moot since Hecox had re-enrolled at Boise State and is playing for the women’s club soccer team. But lawyers for Little and the intervenors argued otherwise at the Ninth Circuit once again on Tuesday, claiming the case became moot when Hecox dropped out in October 2020.

Senior U.S. Circuit Judge Andrew Kleinfeld, a George Bush appointee, wasn’t convinced.

“Tell me what I'm missing here,” Kleinfeld said. “It looks like she didn't make the team and she didn't make the grades she needed, and she didn't have the money, and she dropped out. But she filed a declaration with concrete plans to practice more and to get back into school and to accumulate the money to do it. I'm thinking at that point it was pretty borderline in terms of movement, but it turns out her declaration was pretty concrete and she actually did it. Evidently, she meant it.”

Kleinfeld noted Hecox became an Idaho citizen, got a job, accumulated money, practiced, went back to school and tried out for both teams. She didn’t make the running team but she made the soccer team. But to the defense, that’s part of the point.

Intervenor attorney Cody Barnett argued that when Hecox dropped out, there were already six contingencies that separated her from injury at the time of the complaint, one being that she was no longer enrolled at school. Other reasons included the requirement making the track team at Boise State and satisfying NCAA regulations regarding credit hours, which, according to Barnett, Hecox does not currently meet.

Another point of contention involves discrepancies between Hecox’s original complaint and her present situation.

“This case has never been a case about club soccer,” Barnett said. “If you look at Hecox's complaint, the only alleged injury in that complaint is running on the cross-country and track teams. There's nothing in the complaint about running and playing in club soccer.”

At one point, Barnett compared Hecox’s attempt to continue with the case as a soccer player to Hirschfeld v. Bureau of Alcohol, Tobacco, Firearms & Explosives, stating, “Hecox's eleventh-hour attempt to shoehorn in soccer is a lot like the plaintiff in Hirschfeld who tried to shoehorn in selling firearms.”

To Barnett, if Hecox wants to bring a case about playing soccer, then judges should vacate the preliminary injunction, remand with instructions to dismiss, and allow Hecox to put that claim to the test accordingly in a new complaint.

After further arguments from Barnetts and Boise State attorney William Zanzig, the panel moved on to Hecox’s attorney Andrew Barr, who asked the judges to affirm Nye's preliminary injunction and remand for further proceedings.

“What about during that period when she had dropped out of school?” asked Kleinfeld, jumping to the point of mootness.

Barr said Hecox had to withdraw from class by a certain date to avoid an F on her transcript, a point she already addressed in a declaration.

“If Lindsay wasn't planning on coming back to school, she wouldn't be careful about preserving her GPA,” Barr said.

U.S. Circuit Judge Kim McClane Wardlaw, a Bill Clinton appointee, asked Barr for his strongest argument against mootness. “Is it that she's currently playing on the woman's soccer team and bent for the injunction in place? She would not be able to do so because of the Idaho law? Isn't that your stronger one rather than relying on the intent to try out again in 2023 for the track team?”

Barr said each is viable.

After a quick rebuttal from Barnett, Wardlaw, Kleinfeld and U.S. Circuit Judge Ronald Gould, another Clinton appointee, adjourned with no indication on how they might rule.

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