BOISE, Idaho — On Tuesday, Nov. 22 the Ninth Circuit Court of Appeals heard arguments over a lawsuit filed by the American Civil Liberties Union (ACLU) and the ACLU of Idaho, Legal Voice, and Cooley LLP. The arguments were about the mootness of the case and whether or not the suit should proceed.
The lawsuit concerns transgender athletes and challenges created by the State of Idaho's ban preventing them from participating in school sports. It was filed on behalf of Lindsay Hecox, a student at Boise State, and a Boise High School student, named as Jane Doe, who is no longer involved in the case.
“We’re on the right side of history and the right side of the law: this case is clearly not moot and Lindsay should have the right to continue playing women’s club soccer and try out for the women’s cross-country team," said Aadika Singh, ACLU of Idaho legal director, in a press release. "Both of those opportunities are possible for Lindsay because our litigation has preliminarily blocked enforcement of this unconstitutional law, HB 500.”
House Bill 500 was passed in April of 2020 and banned transgender women and girls from participating in both women's and girls' sports. Following the bills passing, a lawsuit against the decision was filed on Hecoxs' behalf.
Two women who run for Idaho State University, Madison Kenyon and Mary Marshall, also became involved in May of 2020 when they moved to intervene because they want to maintain "female only competitions."
During these most recent oral arguments, the defendants for the State of Idaho and the Alliance Defending Freedom suggested that Hecoxs' case is moot because her interest in challenging the law is merely speculative.
Singh said, regarding the recent hearing of arguments, that Hecoxs' case is not moot and the student is in good standing at Boise State. Further, Hecox has been playing club soccer and intends to meet all the requirements for being able to try out for the cross country team, which is what the lawsuit is centered on.
The state and the defense are claiming that there are contingencies involved. For instance, will Hecox remain in school and will she complete the credits?
"We say it is about taking the steps," said Singh. "She already has been running and is on two informal teams. You could ask every college student these things... it is an unreasonable standard. She's just asking to tryout."
According to Singh, the standard for the lawsuit moving forward is that Hecox must have a specific intent to join the team and complete 27 credits by this fall. She said Hecox will meet the requirements and that the only reason she did not try out for the team earlier was because she had COVID.
If the court finds that her case is moot the law will become enforceable and transgender athletes will not be allowed to participate in school sports in Idaho. Singh said that the only way to challenge the law from there is if lawmakers get rid of HB500 or if another person, or Hecox, refiles a lawsuit.
Singh said at the heart of it, the bill is causing a lot of harm. In Idaho, many previous arguments have been about testosterone levels, however, Hecoxs' fall well below that threshold.
Further, Singh said that no evidence has been presented that she has an unfair advantage, that the state is paying a lot of money and time to pass the law and that the passing of this bill has caused a lot of harm to the transgender community as a whole. The defendants are claiming that allowing Hecox to participate harms them.
Deputy Attorney General Scott Zanzig and Alliance Defending Freedom argued that the case should be dismissed. Singh said that the state has been working, seemingly hand in hand, with the alliance and only took up three of the 20 minutes allotted for arguments while giving the rest of the time to the Alliance Defending Freedom.
The Alliance Defending Freedom is a conservative Christian legal advocacy group that the Southern Poverty Law Center (SPLC) has designated as a hate group.
The SPLC states that Alliance Defending Freedom supports criminalizing LGBTQ+ individuals, has supported laws that would require forced sterilization of LGBTQ+ people in Europe and has linked identifying as LGBTQ+ with pedophilia.
Alliance Defending Freedom strongly disputes the SPLC’s labeling and characterization of its work.
After the time of this publishing, KTVB received a statement from Senior Counsel and Senior Vice President of Corporate Engagement at Alliance Defending Freedom, Jeremy Tedesco.
"The Southern Poverty Law Center is a thoroughly discredited, blatantly partisan activist organization with zero moral authority," wrote Tedesco. "The truth is, Alliance Defending Freedom is among the largest and most effective legal advocacy organizations dedicated to protecting the religious freedom and free speech rights of all Americans. Our record includes 14 Supreme Court victories since 2011 and over 400 victories protecting the free speech rights of students on college campuses."
Singh expects the court to come to a decision regarding the mootness arguments in a few months.
"We found one trans athlete for this lawsuit," said Singh, "so what is the harm that they are concerned about? Trans people are saying we are done with this state because it's filled with vitriol. The real harm is the dialogue that they have created around trans people."
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