Fairness in Women’s Sports: Updates from Hecox v. Little
This article was written by Amanda, a WoLF volunteer
Idaho HB 500: The Fairness in Women’s Sports Act
On March 30th, 2020, the state of Idaho passed HB 500, The Fairness in Women’s Sports Act, and it was signed into law by Governor Brad Little. This act bars biological male student athletes from participating in sports designated for female athletes. It allows for the existence of co-ed teams for members of either sex who wish to participate in mixed-sex sports leagues, and it also provides an avenue for students who may have intersex conditions to play sports in school in a setting that is safest and most fair for them, based on observable biological traits rather than subjective identity expression.
Plaintiff’s Lawsuit: Hecox v. Little
Shortly thereafter, the ACLU in Idaho sued the state on behalf of Lindsay Hecox, a trans-identified male student athlete at Boise State, and Jane Doe, an anonymous female student athlete. They are the plaintiffs, or the ones with a complaint, in this case. See our 2020 Women Speak! webinar, “The Idaho Example - Why is the ACLU against civil rights for women and girls?” They argue that the law signed by Governor Little violates two main rights: 1) the right to freedom from discrimination under the Equal Protection Clause of the Constitution, and 2) the right to privacy.
The ACLU’s suit argues that the law excludes trans-identifying students from participating in sports on the basis of sex exclusion. This position assumes that gender identity merits the same protections and rights as biological sex, and therefore one’s preferred gender identity ought to carry more weight than biological sex. Under this framework, a natal male ought to be able to participate in girls’ and women’s sports as long as he self-identifies as a girl or woman. They also argue that requiring an athlete to undergo any sort of testing to better place him or her in an appropriate league is an invasion of privacy. This relies on the outdated notions that females are female due to clothes, hairstyles, and makeup, rather than biological reality and in a free society, women and girls should appear and behave however they choose to do so.
Part of the ACLU’s lawsuit against Idaho and its governor (Hecox v. Little) is a request to the court for injunctive relief, or, to essentially prevent the signed bill from going into effect as law, as it ordinarily would have on July 1, 2020 with the governor’s signature. They request the law be stayed immediately so that its provisions will not go into effect while the lawsuit goes through the lengthy court process, and permanently so it never will go into effect, due to the court potentially ruling in favor of the plaintiffs and finding the bill unconstitutional in the first place.
Motion to Intervene
Two female student athletes at Idaho State University, Madison Kenyon and Mary Marshall, filed a motion to intervene in the lawsuit as additional defendants. They are represented by the Alliance Defending Freedom. A motion to intervene is an avenue for interested parties who have a vested interest in defending the issue at hand to essentially ask the court for permission to be involved in the lawsuit on the side of the defendants. These students’ position is that they are potentially impacted by the outcome of this lawsuit, and they want to lend their voices as parties who ought to have a seat at the table in defending the Fairness in Women’s Sports Act and what the law provides for them in terms of benefit or protection. The ADF filed this motion on May 26, 2020.
Defendant’s Motion to Dismiss
The State of Idaho filed a motion to dismiss the case outright on June 1st, 2020. This motion argues that the plaintiffs lack standing in the first place, and that the whole lawsuit should be thrown out as a matter of existing law, without further arguments or deliberations needed. The state argues that the plaintiff does not have a worthwhile injury to their legal interests that merits going through the court process to fix or make right. To put it simply, a motion to dismiss is an appeal to the court that the basis of the lawsuit is so inaccurate and obviously already settled by existing law, that the lawsuit is unnecessary and should be thrown out.
Plaintiff’s Opposition to the Motion to Intervene
The plaintiff opposes the two students’ request to be included as defendants. They argue that the proposed intervenors do not have sufficient interest in the lawsuit, that the original defendants do not need any additional support because the state of Idaho is already fully equipped to defend itself without further outside intervention, and that they do not have a reasonable interest in being involved because HB 500 would not protect them from potentially competing against biological males who identify as women because national collegiate sports organizations such as the NCAA already allow it in inter-state competition.
Department of Justice’s Statement of Interest
On June 19th, 2020, attorneys on behalf of the United States Department of Justice filed a statement of interest taking the position that the Fairness in Women’s Sports Act does not violate the Equal Protection Clause. They also argue that the plaintiffs are asking for a form of special treatment in wanting to be allowed unquestioned participation in historically sex-segregated activities, and point out several negative ramifications that such an allowance would create. The statement cites previous Ninth Circuit rulings that are in line with the Fairness Act, as well as other circuits’ rulings on similar issues.
Appeals to the scientific evidence are made in opposition to the plaintiff’s claims that physiological differences between the sexes can be merely chalked up to old-fashioned stereotypes and should not be taken into account when assessing fairness or equal access to sports. The DOJ rightfully compares cases in which the US military has had to make provisions for sex-based differences rather than utilizing a blanket approach of performance alone to determine entry - as in sports, opportunities for women’s participation decrease dramatically as men easily displace them in terms of sheer strength, size, and endurance under this approach. Citing both science and precedent, the DOJ unequivocally calls for the court to find that HB 500 is constitutional and complies with the Equal Protection Clause.
Oral Arguments
On July 22nd, 2020, the United States District Court for the District of Idaho heard oral arguments on the following three motions: the plaintiff’s Motion for Preliminary Injunction (asking the Court to halt HB 500 from going into effect until the whole matter is settled), the Motion to Intervene by the proposed intervenors, and the state of Idaho’s Motion to Dismiss.
The Court’s Rulings
On August 17th, 2020, the Court published its ruling on the three motions mentioned above by way of an order. The order is as follows:
The Court granted Madison Kenyon (Madi) and Mary Marshall (MK)’s motion to intervene, and they are referred to as Intervenors going forward. They are now officially parties of the case as Intervenors for the defense.
The Court partially granted and partially denied the defendant’s Motion to Dismiss.
A) Partially denied: The Court found that some of the injuries stated by plaintiffs Hecox and Jane Doe did have basis, and as they related specifically to the Fairness in Women’s Sports Act, the Court denied the Motion to Dismiss and allowed the plaintiffs to continue seeking relief for those specified injuries.
B) Partially granted: The Court ruled that the plaintiff (Lindsay Hecox) has not yet actually suffered harm or injury by not being able to participate in women’s sports, because 1) Hecox has not yet attempted to join the women’s team at Boise State, and 2) the law in question would not go into effect until July 1, 2020, which, at the time of this ruling, had not occurred, and thus, no harm or injury to Hecox exists at this time. This and some other “facial” challenges were dismissed by the Court.
The Court granted the plaintiff’s Motion for Preliminary Injunction based on the likelihood that the Fairness in Women’s Sports Act could be ruled unconstitutional in future decisions. This means that the law is placed on hold from going into effect until a final decision on the matter is handed down. This decision does not mean the Court ruled the Act constitutional or not, just that it has a reasonable possibility of being proven unconstitutional, and therefore the plaintiffs are entitled to temporary relief in the form of preliminary injunction (staying the law).
Intervenors’ Appeal
On September 16th, 2020, the intervenors filed an appeal to the Ninth Circuit Court of Appeals based on the District Court of Idaho’s granting of the plaintiff’s motion for a preliminary injunction. This means they wish to take up the issue with a higher court in the hopes that the Ninth Circuit will overrule the District Court’s ruling and grant their appeal to change the outcome in their favor. Recently granted a proper place in this case, the Intervenors-Appellants (Madi and MK) then filed their opening brief to the Ninth Circuit on November 12, 2020, outlining their case for why the Court should hear them out and remove the injunction on the Fairness in Women’s Sports Act from going into effect. WoLF filed its amicus brief on November 19, 2020 - read our full amicus brief here.
Amicus Briefs
Interested parties, advocacy groups, and even other states begin filing amicus curiae briefs in support of both sides of the lawsuit.
An amicus brief is a statement written by “a friend of the court,” meaning, someone outside of the named parties in the case. They are neither a plaintiff, defendant, or appellant for either side, but rather a separate entity who wishes to publicize the support for their position in the matter. They are on one side or the other, and they can provide the Court with relevant information, research, opinions, and other evidence to help support their position once a case is being appealed. Sometimes these briefs contain essential information and arguments that end up contributing significantly to an appeal’s outcome.
WoLF, the Women’s Human Rights Campaign USA (Women’s Declaration International USA), 14 US states, and other parties, including medical professionals, filed briefs in support of the defendants. You can read WoLF’s Hecox v. Little amicus brief here. GLAAD, the League of Women Voters, the National Women’s Law Center, and The Trevor Project, among others, filed briefs in support of the plaintiffs.
The Ninth Circuit Remands the Case to the District Court
Before agreeing to take up the entire case, the Ninth District issued a ruling remanding, or returning the jurisdiction, to the District Court of Idaho in order to resolve a specific issue. This issue was a question of mootness, or, timeliness of an issue. If an issue previously brought before the court has been resolved or rectified somehow due to the passage of time or by some other way before the court has remedied it, then the matter is considered moot and not worth the court’s time pursuing.
The issue in question was whether or not the plaintiff Lindsay Hecox still had eligibility to compete in collegiate sports due to a change in her enrollment status at Boise State. This could be a question of Hecox taking enough credit hours to be considered an active student in addition to how many semesters of NCAA eligibility Hecox may have remaining while this lawsuit is pending. The Ninth Circuit Court contended that it was not provided with enough evidence from either side to comfortably dismiss the case due to mootness, lest better evidence existed to tip the scale and make it clear which direction the case should go. Rather than make a decision on the mootness in the Ninth Circuit, that court remanded it back to the Idaho District Court to figure out before bringing it back on appeal. If the case is moot, then the Ninth Circuit need not spend its time entertaining it in the first place, and thus it is the responsibility of the District Court to straighten out that matter.
Court’s Ruling on Mootness Issue
The District Court of Idaho issued a ruling on July 18th, 2022 that found Hecox still eligible to play sports at Boise State as a student, and thus, could potentially be impacted by the Fairness in Women’s Sports Act going into effect, thereby rendering Hecox’s claim not moot.
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