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Ninth Circuit revives lawsuit over Idaho ban on trans athletes

Lindsay Hecox has standing to sue since she had not yet tried out for Boise State’s athletic programs and now cannot because of the ban on trans women athletes.

(CN) — A Ninth Circuit panel on Monday revived a transgender woman's constitutional challenge to Idaho’s Fairness in Women’s Sports Act, determining her temporary withdrawal from school did not make her case against the transgender athlete ban moot.

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, The law also requires 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 plaintiff Lindsay 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brief, however, Hecox told the Ninth Circuit she did not make Boise State’s cross-country team and had temporarily withdrawn from school.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 in November 2022, 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 then and remains so.

“Hecox’s challenge to the constitutionality of the act is not moot and has not been mooted by events occurring during the course of this litigation,” wrote Kleinfeld in the unpublished memorandum along with U.S. Circuit Judges Kim Wardlaw and Ronald Gould, both Bill Clinton appointees.

The panel found while Hecox did not try out for the women’s cross-county and track teams in fall 2022 due to illness and her father’s death, she declared plans to try out the following fall.

“Regardless, Hecox cannot continue participating in the women’s club soccer team on which she is currently a member absent the preliminary injunction, and her complaint broadly asserted her interest in playing on any sports team, not just cross-country and track,” Kleinfeld wrote. “Therefore, her claims are not moot.”

Citing West Virginia v. EPA, Kleinfeld added Hecox has Article III standing to sue since at the time the complaint was filed, she had not yet tried out for Boise State’s women’s track and cross-county teams because the ban “categorically barred her from doing so.”

“The district court’s determination that this case continues to present a live controversy is affirmed,” Kleinfeld wrote.

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Categories / Appeals, Civil Rights, Education, Health, Sports

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