79 F.4th 1009
9th Cir.2023Background
- In 2020 Idaho enacted the Fairness in Women’s Sports Act, which (1) designates school teams by “biological sex,” (2) bars students of the male sex from teams designated for females, and (3) permits any individual to “dispute” a female-designated athlete’s sex and require medical verification (reproductive anatomy, genetic makeup, or endogenous testosterone).
- Plaintiffs: Lindsay Hecox (a transgender woman seeking to compete for Boise State University) and a cisgender female student challenged the Act as violating the Equal Protection Clause (and Title IX); the district court granted a preliminary injunction in August 2020 enjoining enforcement of the Act.
- The Ninth Circuit reviewed whether the district court abused its discretion in granting the preliminary injunction; the appeal raised (among other things) whether heightened scrutiny applies and whether the Act is substantially related to important governmental interests.
- The panel held that the Act discriminates on the basis of transgender status and sex, triggering heightened scrutiny, and that the State failed to show the Act’s categorical ban and invasive verification process were substantially related to the State’s asserted interests.
- The court affirmed the preliminary injunction (with a partial concurrence/dissent by Judge Christen, who agreed injunctive relief was warranted but raised points about interpretation of the verification provision, Rule 65 specificity, and tailoring as applied to certain subgroups).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny | Hecox: law targets transgender persons and sex; heightened scrutiny applies | Little: classification is by biological sex, not transgender status; rational basis or ordinary sex-scrutiny (Clark) controls | Court: heightened scrutiny applies because the Act discriminates on transgender status and subjects only female athletes to invasive verification |
| Validity of categorical ban on transgender women in female sports | Ban is not substantially related to important interests; it is overbroad (sweeps in pre‑pubertal and hormone‑treated individuals) | State: protecting competitive fairness and women’s athletic opportunities due to average physiological sex differences | Court: Likely fails heightened scrutiny—record did not show categorical ban is substantially related to stated interests |
| Sex‑dispute verification process (medical exams, genetics, endogenous testosterone) | Process is invasive, humiliating, and targeted at girls/women; not justified and will deter participation | State: verification is necessary to implement the ban and protect fairness | Court: Likely fails heightened scrutiny—State offered no ‘exceedingly persuasive’ justification for this intrusive, sex‑specific enforcement mechanism |
| Scope and specificity of injunction | Plaintiffs sought relief restoring pre‑Act policies (NCAA/IHSAA) for all similarly situated | Intervenors/State argued injunction overbroad and insufficiently specific under Rule 65 | Court: Affirmed injunction enjoining enforcement of the Act and restoring pre‑Act status quo; Judge Christen concurred in part but would have trimmed or required greater specificity/tailoring |
Key Cases Cited
- United States v. Virginia, 518 U.S. 515 (1996) (heightened scrutiny and "exceedingly persuasive justification" standard for sex classifications)
- Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (heightened scrutiny applies to laws discriminating on transgender status)
- Clark ex rel. Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126 (9th Cir. 1982) (upholding sex-separated school teams under intermediate scrutiny in prior context)
- Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) (proxy discrimination and facial effect analysis for classifications targeting a protected group)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (discrimination against transgender persons is discrimination based on sex)
- Doe v. Reed, 561 U.S. 186 (2010) (as‑applied challenges can have facial reach for remedying a category of applications)
- Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (intermediate scrutiny standard for gender classifications)