Women’s Liberation Front (WoLF) has filed an Amicus Brief with the US Court of Appeals for the Ninth Circuit in the case of Hecox v Little. One of the plaintiffs in this case is Lindsay Hecox, a male student athlete at Boise State University, represented in part by the  American Civil Liberties Union (ACLU) to overturn Idaho’s Fairness in Women’s Sports Act so that he may compete on the BSU women’s track team.

Along with the state of Idaho (represented by Governor Brad Little), two female athletes have also joined in the case as Appellants in defense of the law. Madison Kenyon and Mary Kate Marshall, runners for Idaho State University, argue that the Fairness in Women’s Sports Act ensures that other young women and girls like them will be able to benefit from participation in competitive sports.

WoLF’s brief urges the court to rule in favor of Kenyon and Marshall, and reverse the preliminary injunction against the Fairness in Women’s Sports Act to affirm the longstanding legal principle that women and girls are protected under Title IX on the basis of sex.

The Fairness in Women’s Sports Act

The Fairness in Women’s Sports Act (House Bill 500) was passed by the Idaho state legislature and signed into law on March 30, 2020. The law was sponsored by Representative Barbara Ehardt, a former NCAA Division I basketball player and coach. Ehardt was motivated to introduce the legislation to protect the athletic opportunities of women and girls promised under Title IX. 

In an interview with WoLF, Representative Ehardt stated, “Title IX changed my life.” Ehardt had wanted to play sports since she was a young girl, but in the 60s was prevented from doing so because of her sex. “Because of Title IX, I was able to go on and play Junior High basketball, which wasn’t a common thing—especially in Idaho.” She ended up receiving an athletic scholarship to play at Idaho State University and later spent 15 years as a coach.

“In bringing forward this legislation was the idea that we need to preserve opportunities for girls and women in sports,” she stated.

The law states that: 

“Having separate sex-specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors.”

It specifically prohibits male students from participating on sports teams that have been designated for female students, stating:

“Athletic teams or sports designated for females, women, or girls 14 shall not be open to students of the male sex.”

In the rare instance that a student’s sex required verification, this can be done by simply presenting a doctor’s note or Idaho’s student athlete health form (already requried for all high school athletic participation) confirming the student’s biological sex.

The Act was widely popular with Idaho voters, with polling indicating that 66 percent of Idaho voters support the Fairness in Women’s Sports Act. Eighty percent of Idaho voters, including the majority of women, stated that boys and men who say they identify as transgender should not be allowed to compete in women’s and girls’ sports. 

The Case

A lawsuit challenging the law was filed in April of 2020, represented in part by the ACLU. In their argument, the ACLU argued that the law would "cause severe and entirely unnecessary harms and distress" to men and boys with gender dysphoria "who already face exceedingly high rates of suicidality.”  In their view, the mental health concerns of a male athlete should take precedence over the thoughtfully constructed sex-based protections for women and girls under Title IX.   They also argue that requiring physician confirmation of sex in the case of a dispute is a violation of the student’s privacy rights (though they remain hostile to concerns about privacy, safety, and fairness for the female athletes who rely on single sex sports teams and locker rooms). 

The plaintiffs argued that enforcing Title IX as written (by preserving single-sex sports teams) is a violation of the Equal Protection clause of the 14th amendment for male athletes who do not wish to be viewed as male. The district court issued an injunction against enforcement of the Fairness in Women’s Sports Act pending the outcome of this case, forcing female students like Kenyon and Marshall to compete against male athletes in the meantime. This decision was appealed to the Ninth Circuit Court of Appeals, who will now decide whether to reverse or affirm the injunction.

WoLF points out that Title IX athletic regulations actually “require differential treatment on the basis of sex in order to assure equal opportunity,” further noting that ‘[t]he Appellees’ argument that sex should be determined by a person’s internal sense of their own identity is antithetical to the reasoning behind single-sex teams.”

As intervening appellants, Kenyon and Marshall argued that policies which allow male athletes to compete in female sports have disadvantaged them in exactly this way. In 2020, Kenyon and Marshall were both forced to race against a male student who had previously competed on the men’s student track team and recorded times “in multiple events that would have broken national records in women’s events.” The women watched their teammates lose positions to a man in their own sport. Their testimony demonstrates the real harm to women’s athletic and educational opportunities when male athletes take spots on women’s teams.

The WoLF Amicus Brief also points out that the recent Supreme Court ruling in Bostock, a narrow ruling on Title VII employment discrimination, does not apply to Title IX cases. The US Department of Education’s Office of Civil Rights (OCR) recently affirmed this. 

Especially concerning in this case—as in an increasing number of cases—is the violation of the Appellants’ right to free speech by the district court via compelling the parties to avoid using masculine pronouns or the words “male” or “man” when referring to Lindsay Hecox. Banning the use of accurate sex descriptors may impact the way the case will now be analyzed by the Appellate Court, since the record gives the false appearance of agreement about something that no reasonable person can agree to: that Lindsay Hecox’s subjective self-identification as female actually makes him female, or that it should have any effect on his eligibility for women’s sports.  This inappropriate decision by the district court raises “delicate questions about judicial impartiality” according to the 5th Circuit.

WoLF’s brief also points out that US civil rights law “recognizes the need to protect people from the subjective beliefs of others, including subjective beliefs founded on sex-stereotypes.”

The first argument states:

“Women and girls are thus protected under the law from subjective beliefs about whether and how women should work, vote, have children or not have children, and how they ought to look and behave. Under the law, no longer are women (or men) governed by such regressive beliefs. In stark contrast, being “transgender” depends on the continued existence of sex-stereotypes.” 

Protection from persecution based on the beliefs of others is a core tenet of US civil rights law. Yet forcing girls and women to compete against boys and men, and further requiring compelled speech by those women to avoid referring to the sex of those who are harming them, fundamentally violates existing civil rights protections.

WoLF’s brief argues this point:

“Spiritual beliefs provide many people with a sense of purpose and a way to make sense of the world. But these beliefs – which are impossible to observe or verify – can neither be imposed on the public nor used to justify eroding civil rights protections against sex-based discrimination. Likewise, girls and women are female whether or not they look or act in a stereotypically feminine manner. To believe that sex is determined by a gendered soul or feminine appearance, rather than biology, is to believe that femininity is the same thing as being female. This belief is offensive and harmful to women and antithetical to civil rights jurisprudence. Yet the court is being asked to adopt this regressive belief....” 

The outcome of this case is a statement on whether the Ninth Circuit will honor the plain text and original intent of Title IX, which is to prohibit discrimination on the basis of sex. Allowing men and boys to compete in women’s and girls’ sports violates their civil rights by depriving them of equal opportunity, and forcing athletes to pretend that male people are female further violates their right to freedom of conscience by forcing them into compliance with a regressive and quasi-spiritual ideology founded on sex-stereotypes. 

WoLF condemns this attempt to dismantle Title IX protections which were explicitly enacted to ensure equal athletic opportunity to women and girls. We urge the Ninth Circuit court to rule in favor of women and girls who just want a fair shot in sports.

Read the whole Amicus Brief here.

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