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Hecox v. Little, No. 20-35813 (9th Cir. Aug 17, 2023)

Abstract: A Ninth Circuit panel, with one judge concurring in part and dissenting part, has upheld a preliminary injunction issued by the U.S. District Court for the District of Idaho prohibiting the State of Idaho from enforcing its law barring transgender female student-athletes from participating in women’s/girls’ sports. The panel held that the plaintiffs had demonstrated that they were likely to prevail on the merits of their equal protection claim. It stated Idaho had failed to produce  any evidence demonstrating the law promotes sex equality and opportunity for female athletes.

The concurring/dissenting judge agreed with the two-judge majority that the district court did not abuse its discretion by granting preliminary injunctive relief. The judge also agreed that the majority did not abuse its discretion by enjoining enforcement of the law against non-plaintiffs. However, the judge disagreed with the majority’s conclusion that “only women and girls who want to compete on Idaho school athletic teams, and not male athletes, are subject to the sex dispute verification process.”

Issue: Whether the federal district abused its discretion in granting a transgender female student-athlete a preliminary injunction prohibiting the enforcement of Idaho’s law banning transgender female student-athletes from participating on women’s/girls’ sports teams based on the student-athlete’s likelihood of success on the merits of her equal protection claim?

Facts: In 2020,plaintiffs in this case challenged the constitutionality of a new Idaho law, which excludes transgender women from participating on women’s sports teams. Defendants assert that plaintiffs lack standing, that their claims are not ripe for review, that certain of their claims fail as a matter of law, and that they are not entitled to injunctive relief. The proposed intervenors seek to intervene to advocate for their interests as female athletes and to defend the law against plaintiffs’ challenge. The United States also filed a Statement of Interest in support of Idaho’s law.  

The primary question before the district court was whether the court should enjoin the State of Idaho from enforcing a newly enacted law which precludes transgender female athletes from participating in women’s sports and involves complex issues relating to the rights of student athletes, physiological differences between the sexes, an individual’s ability to challenge the gender of other student athletes, female athlete’s rights to medical privacy and to be free from potentially invasive sex identification procedures, and the rights of all students to have complete access to educational opportunities, programs, and activities available at school.  

The debate regarding transgender females’ access to competing on women’s sports teams has received nationwide attention and is currently being litigated in both traditional courts and the court of public opinion. Despite the national focus on the issue, Idaho is the first and only state to categorically bar the participation of transgender women in women’s student athletics. This categorical bar to girls and women who are transgender stands in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally—including the National Collegiate Athletic Association (NCAA) and the International Olympic Committee (IOC)—which allow transgender women to participate on female sports teams once certain specific criteria are met.  

In addition to precluding women and girls who are transgender and many who are intersex from participating in women’s sports, Idaho’s law establishes a “dispute” process that allows a currently undefined class of individuals to challenge a student’s sex. If the sex of any female student athlete—whether transgender or not— is disputed, the student must undergo a potentially invasive sex verification process. This provision burdens all female athletes with the risk and embarrassment of having to “verify” their “biological sex” in order to play women’s sports. Similarly situated men and boys—whether transgender or not—are not subject to the dispute process because Idaho’s law does not restrict individuals who wish to participate on men’s teams. Finally, as an enforcement mechanism, Idaho’s law creates a private cause of action against a “school or institution of higher education” for any student “who is deprived of an athletic opportunity” or suffers any harm, whether direct or indirect, due to the participation of a woman who is transgender on a women’s team.  

Idaho schools are also precluded from taking any “retaliation or other adverse action” against those who report an alleged violation of the law, regardless of whether the report was made in good faith or simply to harass a competitor. Plaintiffs seek a preliminary injunction which would enjoin enforcement of Idaho’s law pending trial on the merits. The court will ultimately be required to decide whether Idaho’s law violates Title IX and/or is unconstitutional, but that is not the question before the court at this time.  

The U.S. District Court for the District of Idaho has granted a motion for preliminary injunction in favor of plaintiffs, student-athletes, prohibiting the State of Idaho from enforcing its law barring transgender female student-athletes from participating on women’s/girls’ athletic teams until a decision on the merits of the plaintiffs’ claims. The court also granted the cisgender student-athletes’ motion to intervene in support of the Idaho law. In addition, it denied that part of defendants’ motion to dismiss regarding the plaintiffs’ “as applied” constitutionalclaims but granted that part of the motion seeking dismissal of the plaintiffs Fourteenth Amendment “facial” claims. 

Holding/Rationale: A Ninth Circuit panel affirmed the district court’s issuance of a preliminary injunction in favor of transgender student-athlete. However, one of the three-member panel concurred in part and dissented in part. The panel’s majority applied heightened scrutiny to its analysis of the law because law discriminates on basis of transgender status. It also noted that gender identity is considered a “quasi-suspect class.”

The majority stressed “discrimination on the basis of transgender status is a form of sex-based discrimination, adding “It is well established that sex-based classifications are subject to heightened scrutiny.” The majority observed “[m]any courts . . . have held that various forms of discrimination against transgender individuals constitute sex-based discrimination for purposes of the Equal Protection Clause because such policies punish transgender persons for gender non-conformity, thereby relying on sex stereotypes.”

The majority, applying the heightened scrutiny because Idaho’s law discriminates against all female student-athletes, found the law discriminates not only on the basis of transgender status, but also discriminates on the basis of sex “because only women and girls who want to compete on Idaho school athletic teams, and not male athletes, are subject to the sex dispute verification process.” It pointed out the law does not “ban ‘biological females’ from ’teams or sports designated for males.’” The majority concluded: “Therefore, transgender and cisgender men who compete on male-designated teams are not subject to the sex dispute verification process. The sex dispute verification process simply does not apply to male athletes.” It stated that “where women and girls are subject to separate requirements for educational opportunities that are ‘unequal in tangible and intangible’ ways from those for men, those requirements are tested under heightened scrutiny.”

Based on its reasoning, the majority agreed with the district court conclusion “that neither the categorical ban nor sex dispute verification provisions likely survive heightened scrutiny.” Acknowledging that the Ninth Circuit had previously held that furthering women’s equality and promoting fairness in female athletic teams is an important state interest, the majority, nonetheless, found: “[O]n the record before us, the district court correctly determined that the Act’s means—categorically banning transgender women and girls from all female athletic teams and subjecting all female athletes to intrusive sex verification procedures—are not substantially related to, and in fact undermine, those asserted objectives.”

The majority rejected Idaho’s reliance on Clark, ex rel. Clark v. Arizona Interscholastic Ass’n (Clark I) , 695 F.2d 1126 and Clark ex rel. Clark v. Arizona Interscholastic Ass’n (Clark II), 886 F.2d 1191 (9th Cir. 1989). It again agreed with the lower court’s finding that “it is not clear that transgender women who suppress their testosterone have significant physiological advantages over cisgender women,” unlike the cisgender boys at issue in Clark I and Clark II. It also highlighted that the district court noted “transgender women, ‘like women generally . . . have historically been discriminated against, not favored.’”

The majority observed: “Unlike the policy in Clark I, the Act perpetuates historic discrimination against both cisgender and transgender women by categorically excluding transgender women from athletic competition and subjecting all women to an invasive sex dispute verification process.” It stated that “the district court correctly found that ‘under the Act, women and girls who are transgender will not be able to participate in any school sports, unlike the boys in Clark I, who generally had equal [or greater] athletic opportunities.’”

The majority concluded that the law’s categorical ban provision likely fails heightened scrutiny. It pointed out: “First, the district court found that there was scientifically ‘no evidence to suggest a categorical bar against a transgender female athlete’s participation in sports is required in order to promote ‘sex equality’ or to ‘protect athletic opportunities for females’ in Idaho.” It observed: “The district court credited Dr. Safer’s opinion that a transgender woman who endured hormone therapy to lower her circulating levels of testosterone would likely not have different ‘physiological characteristics’ than a cisgender woman that would lead to enhanced athletic prowess.”

The majority found that the “studies that the Idaho legislature relied upon to conclude that the benefits of “natural testosterone” could not be diminished through hormone therapy were likewise flawed.” It concluded “the record in this case does not ineluctably lead to the conclusion that all transgender women, including those like Lindsay who have gone through hormone therapy, have a physiological advantage over cisgender woman.” It also pointed out “the district court found, there was very little anecdotal evidence at the time of the Act’s passage that transgender women had displaced or were displacing cisgender women in sports or scholarships or like opportunities.” The majority emphasized that a “vague, unsubstantiated concern that transgender women might one day dominate women’s athletics is insufficient to satisfy heightened scrutiny.”

In addition, the majority pointed out the district court questioned the Act’s true objectives, ruling that Idaho’s interest was not in “promoting sex equality” but “excluding transgender women and girls from women’s sports entirely.” In footnote 16 of the majority’s opinion, it said, “Other federal and state courts have enjoined transgender sports bans, and no categorical ban has yet been upheld on appeal.” The footnote also cities B. P. J. v. W. Va. State Bd. of Educ., No. 21-00316, 2023 WL 111875 (S.D.W. Va. Jan. 5, 2023) in which the district court upheld West Virginia’s law banning female transgender student-athletes from participating in women’s/girls’ sports. The majority observed: “The Fourth Circuit stayed the district court’s January order pending appeal, and the Supreme Court denied the application to vacate that injunction. See W. Va. v. B. P. J., by Jackson, 143 S. Ct. 889 (2023). As of this writing, transgender girls such as B. P. J. may participate in West Virginia school athletics.

As a result, the majority concluded that “we need not and do not decide what policy would justify the exclusion of transgender women and girls from Idaho athletics under the Equal Protection Clause, because the total lack of means-end fit here demonstrates that the Act likely does not survive heightened scrutiny.”

Turning to the sex dispute verification provision, the majority found that provision likely fails heightened scrutiny. It said, “The district court also correctly concluded that the sex verification provision likely failed heightened scrutiny because Idaho failed to demonstrate an “exceedingly persuasive justification, for subjecting only young women and girls to the humiliating and intrusive burden of the sex verification process.”  According to the majority: “Requiring a student to find a medical practitioner to examine their reproductive anatomy, which is what a typical gynecological exam entails, is unconscionably invasive, with the potential to traumatize young girls and women.”

The majority also noted that “[o]f the twenty other states that have passed restrictions on transgender women’s participation in women’s sports, none has authorized a similar sex verification process.” It explained: “By the plain text of the Act, the purpose of the sex verification process is to identify and exclude transgender women and girls from women’s athletics in Idaho. And a ‘bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’”

Summing up the plaintiffs’ likelihood of success on the merits of their equal protection claim, the majority held:

Because the Act’s means undermine its purported objectives and impose an unjustifiable burden on all female athletes in Idaho, the district court did not abuse its discretion by finding that the sex verification provision likely would not survive heightened scrutiny.

Judge Christen’s concurring/dissenting opinion concluded “that it is the team an athlete chooses to join that dictates whether they are subject to the statute’s verification process, not the athlete’s sex. In my view, the majority errs in holding otherwise.” The judge also disagreed with the majority’s conclusion that the preliminary injunction satisfies the specificity requirements set out in Federal Rule of Civil Procedure 65(d)(1).