BOISE, Idaho — This article originally appeared in the Idaho Press.
A federal court of appeals upheld a block of Idaho’s law barring transgender girls and women from participating on female student teams.
The Ninth Circuit Court of Appeals on Thursday upheld an injunction on the law, which passed in 2020. The law was challenged by Boise State University student Lindsay Hecox and a then-Boise High School soccer player who is called “Jane Doe” in court documents. The ACLU of Idaho and Legal Voice are representing the two athletes.
In its decision, the court found the law likely violates the equal protection clause of the 14th Amendment of the U.S. Constitution.
"We are thrilled at the ACLU of Idaho," said Jeremey Woodson, a spokesperson for the organization. "Not only for our clients, but also for transgender women and girls and all women and girls in Idaho."
Enforcement of the law has been blocked since federal U.S. District Judge David Nye granted a preliminary injunction in August of 2020, which stopped the law from going into effect while its constitutionality is being argued in court.
The law would bar transgender women and girls from participating in or trying out for female public school teams at every level, from elementary school to college. It includes a “sex dispute verification process,” in which anyone may dispute the sex of a female student-athlete and require them to go through a medical examination to verify their biological sex. Male athletes would not have this process.
The Jane Doe plaintiff is cisgender and was concerned about being subjected to the sex verification process.
In the opinion, written by Judge Kim McLane Wardlaw, the court found that, “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.”
Wardlaw wrote that the court recognizes the fear cisgender women may feel of “being shut out of competition” because of transgender athletes. She wrote that the court did not decide on the larger question over whether the restriction violates equal protection, but in its analysis found the lower court’s decision was justified based on the evidence it had.
Judge Morgan Christen partially concurred and partially dissented with the opinion; Christen disagreed with the interpretation that the sex verification process only applied to women and girls. Christen also wrote in her partial dissent that the injunction was overly broad, but said the lower court didn’t present findings that said the ban would be unconstitutional if it applied to trans women and girls who had undergone puberty and had not received hormone therapy to suppress testosterone.
Wardlaw in the majority opinion wrote that the state didn’t provide “persuasive justification” for the ban. It agreed with the district court decision that the law may have the effect of discouraging participation in female sports because of the sex dispute process as well as targeting trans students.
“Before the Act’s passage, Idaho had no sex verification process in place and nonetheless separated teams by gender,” Wardlaw wrote. “The record is devoid of evidence that any boy attempted to join a girls’ team. 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.”
The lawsuit is filed against Gov. Brad Little, former Superintendent of Public Instruction Sherri Ybarra, the State Board of Education, Boise State University President Marlene Tromp, the Boise School District, and BSD Superintendent Coby Dennis.
Two female Idaho State University athletes who reported competitive losses to trans women in cross country were allowed by the district court to intervene on behalf of the defendants.
The Idaho Press reached out the the Idaho attorney general's office, which said it is "looking at all options" regarding an appeal to the decision but did not have further comment because current Attorney General Raúl Labrador had very little to do with this case; the lawsuit was filed during former attorney general Lawrence Wasden's tenure.
Spokesperson for the office Beth Cahill confirmed it is "looking at all options," when it comes to an appeal of the decision.
“This is an important victory for common sense, equality, and the rights of transgender youth under the law,” Chase Strangio, deputy director for transgender justice at the ACLU’s LGBT & HIV Project, said in a press release.
The law is still being challenged in court.
Woodson said the decision "really does bolster our confidence in the challenge to the law itself."
This article originally appeared in the Idaho Press, read more on IdahoPress.com.
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