104 F.4th 1061
9th Cir.2024Background
- In March 2020, Idaho enacted the Fairness in Women’s Sports Act, which categorically bans transgender women and girls from participating in female student athletics from primary school through college.
- The Act also includes an intrusive sex verification process, triggered by any dispute, requiring medical examinations, but this process only applies to female-designated teams.
- Before the Act, Idaho and NCAA policies allowed transgender girls to compete after a year of hormone therapy to suppress testosterone; there was no evidence of transgender women or girls participating in Idaho sports pre-Act.
- Plaintiffs Lindsay Hecox (a transgender woman seeking to compete in BSU women’s sports) and Jane Doe (a cisgender girl worried about being subject to invasive verification) challenged the law, arguing it violated the Equal Protection Clause.
- The district court granted a preliminary injunction, finding the law likely unconstitutional; Idaho appealed. This Ninth Circuit decision reviews whether the injunction was an abuse of discretion.
- The panel affirms the injunction as to Hecox, finds the Act is likely not substantially related to its asserted interests, and remands for the district court to clarify the proper scope of injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What level of scrutiny applies to the Act’s classification? | Argues Act targets transgender women, requires heightened scrutiny for gender/transgender status discrimination | Asserts Act is sex-based, not gender identity-based; should only get rational basis review | Heightened scrutiny applies for both sex and transgender status |
| Does the Act violate Equal Protection by singling out transgender women/girls and all female athletes? | Excludes transgender women/girls, imposes invasive verification only on female teams, lacks a valid state interest | Defends ban as promoting fairness and equal opportunity, claims categories reflect real physiological differences | The Act likely violates Equal Protection; it targets transgender girls/women and lacks "exceedingly persuasive justification" |
| Is categorical exclusion of transgender athletes justified by fairness or competition protection goals? | No evidence transgender athletes are displacing cisgender women or gaining unfair advantage; policies existed pre-Act | Legislature claims inherent advantage remains even after hormone therapy; asserts preemptive action was needed | Act is overbroad, not supported by evidence, and fails to be substantially related to asserted interests |
| Is the sex dispute verification process constitutionally permissible? | Constitutes invasive, degrading, and unnecessary intrusion, disproportionately impacting all female athletes | Claims process is necessary to maintain integrity of female sports | Process is unduly invasive, unsupported, and not constitutionally justified |
Key Cases Cited
- United States v. Virginia (VMI), 518 U.S. 515 (1996) (establishes heightened scrutiny for sex-based classifications)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (equal protection requires similarly situated people be treated alike)
- Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (state must show "exceedingly persuasive justification" for gender distinctions)
- Clark ex rel. Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126 (9th Cir. 1982) (upholds sex-based sports participation policies but distinguishes case at bar)
- Bostock v. Clayton County, 590 U.S. 644 (2020) (discrimination against transgender people is a form of sex discrimination)
- Sessions v. Morales-Santana, 582 U.S. 47 (2017) (overbroad gender classifications must be rejected)
- Nken v. Holder, 556 U.S. 418 (2009) (public interest and balance of equities merge when government is opposing party)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (sets standard for preliminary injunctions)