ABOVE: The Justice Department under President Donald Trump filed a brief in favor of an anti-trans law. (Photo by Gage Skidmore, from Wikimedia Commons)
The Trump administration filed a legal brief Nov. 19 before a federal appeals court arguing in favor of an Idaho law barring transgender students from participating in school sports because states aren’t required “to accommodate the team preferences of transgender athletes.”
The 40-page brief, filed before the U.S. Ninth Circuit Court of Appeals and signed by Matthew Donnelly, an attorney with the U.S. Justice Department’s Civil Rights Division, maintains the trial court erroneously overturned the state law, called the Fairness in Women’s Sports Act.
The Equal Protection Clause of the Fourteenth Amendment, Donnelly argues, allows separate athletic teams based on gender assigned at birth and the sexes are dissimilarly situated in athletics.
“Even if the Fairness Act drew a classification on the basis of transgender status, the act would still comply with the Equal Protection Clause,” Donnelly writes. “Assuming arguendo that such a classification triggers intermediate scrutiny, the Fairness Act is substantially related to the important interest of ensuring that biological females in Idaho have equal opportunities to participate in sports. Separating sports by biological sex ensures that biological females are not forced to compete against biological males, who have inherent athletic advantages.”
Donnelly also disputes the law discriminates on the basis transgender students, arguing the measure never mentions transgender athletes and allow transgender male to participate in girls’ sports.
The Trump administration filed the brief in the litigation against HB 500, which 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.
Chase Strangio, the ACLU’s deputy director for transgender justice, said via email the Justice Department brief is consistent with the Trump administration anti-trans policies.
“The Trump administration is coming to an end the same way it started: by attacking transgender youth,” Strangio said. “Sweeping attacks on transgender people will ultimately fall in court and we will look back on the positions taken by the administration with great horror. The district court judge saw HB 500 was for what it is — unconstitutional discrimination against transgender student athletes and all women. We will continue to fight for Lindsay and other transgender athletes in Idaho.”
In August, U.S. District Judge David Nye, a Trump appointee, ruled against the HB 500 on the basis that it violates the Equal Protection Clause of the Fourteenth Amendment, not just for transgender students but also for “every girl and woman athlete in Idaho.”
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.
In a bizarre twist and convoluted logic, Donnelly argues in his brief the trial court ruling against the law, in fact, permitted discrimination against transgender athletes.
“As a result of the district court’s order, Idaho may prohibit biological males from competing on female teams if but only if they are not transgender,” Nye said. “In other words, the court required Idaho to grant biological males who are transgender an exemption from the Fairness Act’s transgender-neutral rule. This court should reverse this judicially imposed exception, which requires Idaho to discriminate on the basis of transgender status to the detriment of both biological males who identify as male as well as female athletes more generally.”
In the end, Donnelly concludes Nye erred in applying heightened scrutiny to the anti-transgender law, citing a recent case in Connecticut in which transgender athletes beat beat non-transgender competitors in a track event as evidence for why the measure was necessary.
“Idaho also relied on actual instances of transgender athletes decreasing female athletic opportunities,” Donnelly writes. “Two biological males competing in high school girls’ track in Connecticut have taken 15 girls’ state championship titles in the 2017, 2018, and 2019 seasons alone. In 2016, nine different female athletes held these same titles. But two biological males have taken many more opportunities to participate in higher level competitions from female track athletes in the 2017-2019 seasons. Idaho also relied on Intervenors Kenyon and Marshall, who compete as Idaho State University athletes.”
Before Nye 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.
Eric Dreiband, assistant attorney general for the Justice Department’s Civil Rights Division, said in a statement the anti-trans law “complies fully with the U.S. Constitution because it protects all persons equally.”
“The Constitution does not require States to abandon their efforts to provide biological girls and women with equal opportunity to participate in and enjoy the life-long benefits that flow from interscholastic athletics,” Dreiband said. “The Fairness in Women’s Sports Act protects equal athletic opportunities for girls and women and permits all persons fairly to participate in sports.”
Prior to the enactment of House Bill 500, the Idaho High School Activities Association already had in its rules a requirement limiting transgender athletes access to sports, requiring boys who transition to 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.”
