(Above photo by wp paarz, from Flickr)
A Trump-appointed federal judge has issued a ruling blocking Idaho from enforcing a recently enacted law barring transgender girl athletes from participating in school sports.
U.S. District Judge David Nye, appointed by President Trump in 2017, determined Aug. 17 in an 87-page decision the law violates the Equal Protection Clause of the U.S. Constitution, conceding his decision “is likely to be controversial.”
“It is the court’s role — as part of the third branch of government—to interpret the law,” Nye said. “At this juncture, that means looking at the act, as enacted by the Idaho Legislature, and determining if it may violate the Constitution. In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue but, as explained above, the constitutional rights of every girl and woman athlete in Idaho.”
The lawsuit against HB 500 was filed by the American Civil Liberties Union on behalf of Lindsay Hecox, who is preparing to try out for the track and cross country teams at Boise State University.
“I feel a major sense of relief,” Hecox said in a statement. “I love running, and part of what I enjoy about the sport is building relationships with a team. I’m a girl, and the right team for me is the girls’ team. It’s time courts recognize that and I am so glad that the court’s ruling does.”
Applying heightened scrutiny to the Idaho law, Nye draws on the Supreme Court’s recent in decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, as well as the 2015 ruling in favor of same-sex marriage nationwide.
“The proponents’ argument that Lindsay and other transgender women are not excluded from school sports because they can simply play on the men’s team is analogous to claiming homosexual individuals are not prevented from marrying under statutes preventing same-sex marriage because lesbians and gays could marry someone of a different sex,” Nye said.
The law, HB 500, was quietly signed by Idaho Gov. Brad Little in March at the height of the coronavirus epidemic. (Little also signed HB 509, which prohibits transgender people in the state from changing the gender marker on their birth certificates. An Idaho recently determined that law contravenes an earlier court injunction in the state.)
The law requires college and public school sports teams to be designed as male, female and co-ed — and any female athletic team “shall not be open to students of the male sex.”
In the event of a dispute, a student may be required to produce a physician’s statement to affirm her biological sex based on reproductive anatomy, normal endogenously produced levels of testosterone and an analysis of the student’s genetic makeup.
That would effectively ban transgender athletes from participating in sports. Although similar measures had been percolating in state legislatures, Idaho is the first state to enact such a law.
Before the Trump-appointed judge ruled against the anti-trans law, the statute got a boost from Trump himself — who retweeted an article about the Justice Department’s intervention in the lawsuit to defend HB 500.
Prior to the enactment of House Bill 500, Idaho High School Activities Association already had in its rules a requirement that transgender girls “complete one year of hormone treatment related to the gender transition before competing on a girls team.”
According to the Idaho Statesman, IHSAA says as of March 2020 it had “received just a couple of inquiries about Idaho’s policy and has fielded occasional calls about potential transgender athletes over the past five or six years, but so far, Idaho has not had an athlete use the policy.”
Meanwhile, transgender advocacy groups — as well as lesbian athletes Billie Jean King and Megan Rapinoe — are pressuring the National Collegiate Athletics Association to move a major basketball competition from Idaho, the 2021 Men’s Basketball Championship, over enactment of the anti-trans sports law. The NCAA hasn’t made any announcements on that front and the campaign is expected to continue, an ACLU spokesperson said.
Ritchie Eppink, legal director for the American Civil Liberties Union of Idaho, said in a statement the court ruling will have the effect of preserving the economy in Idaho.
“Transgender people belong in Idaho, including on school sports teams,” Eppink said. “This decision will not only protect women and girls, but also the Idaho economy as businesses have made it clear that they do not want to support any attack on transgender students. This is a welcome first step, and our fight for Lindsay, Jane Doe and others impacted by this law is not over.”
A spokesperson for the Idaho attorney general declined to comment on the ruling and whether or not the state will appeal.
