Trial Magazine

In 2020, bigoted, anti-transgender athlete legislation was introduced in more than half of the states. Intended to prevent trans women athletes¹ from participating in public school and collegiate athletics, these proposed bans swept through statehouses.²

Idaho was the first state last year to pass a statewide ban affecting trans women athletes. H.R. 500 establishes that any sports team sponsored by a public school, public university, or organization such as the National Collegiate Athletic Association (NCAA) must not allow any “students of the male sex” to participate on a team designated for females, women, or girls.³ If in question, a student must establish sex by submitting a signed physician’s note indicating the doctor has verified the student’s sex based on internal and external reproductive anatomy, the student’s level of testosterone, and an analysis of the student’s genetic makeup.⁴

Additionally, the bill provides a private right of action for students deprived of an athletic opportunity due to a violation of the law, a cause of action if a student is retaliated against for reporting a violation, and civil liability protections in the form of legal immunity for schools or universities enforcing the law.⁵ H.R. 500 was signed into law in March 2020 but has yet to be enforced due to a preliminary injunction.

Hecox v. Little

The American Civil Liberties Union and Legal Voice have filed a federal lawsuit challenging the constitutionality of Idaho’s ban.⁶ The plaintiffs are Lindsay Hecox, a trans woman athlete at Boise State University, and Jane Doe, a cis woman high school student. Hecox formed a coed running club team at the university in the hopes of running on the varsity team after her medical gender transition was complete. The law would prevent her from running on the women’s team and force her to lose NCAA eligibility during the litigation. Doe hopes to play soccer at her Idaho high school; however, she is concerned that the invasive internal and external testing procedures required by the law to “prove” her sex could violate her safety and privacy.

The plaintiffs’ case is based on several claims for relief.⁷ First, they claim the law violates the Fourteenth Amendment’s equal protection clause by unfairly discriminating against them due to their sex or transgender status. Second, pointing to the internal and external medical examinations required by the law, they argue that the law deprives them of substantive due process, including the right to avoid disclosure of sensitive, personal information. Third, the plaintiffs claim the law violates the Fourth Amendment by subjecting them to invasive medical testing, which is an unreasonable search and seizure. Finally, they argue that the law violates Title IX by excluding only female athletes from participating in athletics.

In August 2020, Judge David Nye of the District of Idaho agreed with the plaintiffs that the law would likely be ruled unconstitutional on its merits because Idaho didn’t meet the heightened scrutiny required to pass this type of discriminatory law and failed to provide sufficient reasons to justify it.⁸ He granted a preliminary injunction blocking enforcement of the law, which the defendants appealed.⁹ In May, the Ninth Circuit heard virtual oral arguments on the case.¹⁰

In addition to these state laws likely being unconstitutional and violating Title IX, they directly conflict with federal guidance.

A Wave of State Legislation

While Idaho was the first state to pass legislation effectively banning trans women and intersex athletes from competing as women in public school and collegiate athletics, it was hardly the last.¹¹ After the success in Idaho, similar legislation took off across the country.¹²

In 2021, at least 32 states introduced and seven states—Alabama, Arkansas, Florida, Mississippi, Montana, Tennessee, and West Virginia—enacted legislation that in some way bans trans women athletes from participating in athletics.¹³

South Dakota Gov. Kristi Noem (R), vetoed her state’s bill, saying she was concerned about its overly broad language and the possibility of conflict with the NCAA.¹⁴ Instead, Noem drafted two executive orders banning trans women athletes from competing at the K–12 and collegiate levels.¹⁵

Kansas also passed anti-trans legislation, but Gov. Laura Kelly (D) vetoed it, and the legislature could not override the veto.¹⁶ Louisiana’s and North Dakota’s governors also vetoed legislation.¹⁷

Copycat language. Many of these state bills contain a mixture of three core tenets. First, the bills prevent people who were assigned male at birth—even if they no longer identify as male—from competing on school sports teams specifically designated for women. Second, many require any athlete whose sex is questioned to provide proof of their sex through a birth certificate or doctor’s note, with some requiring a physical examination. Third, many bills provide a private right of action for people “deprived of an athletic opportunity” or who suffer harm if a school or university fails to follow the legislation.

Some bills also provide immunity to schools, athletic associations, and other entities that obey the legislation. All of the various state legislation stems from Idaho’s law, which makes the ongoing Hecox litigation a critical benchmark for student-athletes looking to fight similar battles in their states.

But even with their similarities, notable differences exist among the enacted legislation. Arkansas’s¹⁸ and Mississippi’s¹⁹ laws, for example, include the first and third tenets listed earlier but don’t require “proof of sex” from athletes. Tennessee’s law²⁰ includes the first and second tenets but says nothing about a private right of action.

Idaho isn’t the only state facing litigation over its anti-transgender athlete law. In July, a federal judge ruled to temporarily block H.D. 3293, West Virginia’s anti-transgender athlete law.²¹ The case involves an 11-year-old plaintiff who would have been prohibited from joining the cross country and track teams. The judge ruled it was likely she would succeed on the merits of both her equal protection and Title IX claims. A lawsuit has also been filed in Florida challenging the state’s anti-transgender athlete law.²² The Human Rights Campaign has announced plans to challenge Arkansas’s, Mississippi’s, and Tennessee’s laws.²³

Conflicting Federal Guidance

In addition to these state laws likely being unconstitutional and violating Title IX, they directly conflict with guidance from the U.S. Department of Education and U.S. Department of Justice (DOJ). In June, the DOJ filed a statement of interest in the West Virginia litigation, stating the law violated the equal protection clause and Title IX.²⁴ Similarly, the Department of Education released guidance stating LGBTQ students are protected under Title IX.²⁵

Sadly, these types of bills aren’t going away anytime soon. The laws that have been passed directly harm trans athletes by denying them the physical, mental, and emotional benefits of athletics while also creating discriminatory and toxic environments that negatively impact their mental health.²⁶ A handful of cherry-picked examples of successful trans athletes doesn’t indicate girls’ sports are suffering; discriminatory laws do.

Kate Miceli is AAJ’s state affairs counsel and can be reached at kate.miceli@justice.org.

Notes

1. The nongovernmental organization GLAAD defines “transgender” or “trans” as “an umbrella term for people whose gender identity differs from the sex they were assigned at birth” and “cisgender” or “cis” as “a term used to describe people who are not transgender.” See GLAAD, GLAAD Media Reference Guide 10 (10th ed. Oct. 2016), https://www.glaad.org/sites/default/files/GLAAD-Media-Reference-Guide-Tenth-Edition.pdf. Merriam-Webster defines “intersexuality” as “the condition . . . of either having both male and female gonadal tissue in one individual or of having the gonads of one sex and external genitalia that is of the other sex or is ambiguous.” See Intersexuality, Merriam-Webster, https://www.merriam-webster.com/dictionary/intersexuality.
2. While the trans athlete ban legislation is written to specifically target trans women athletes, it could also impact other groups such as intersex athletes. Legislation impacting trans people’s access to gender affirming care also was introduced in several states.
3. H.R. 500, 65th Leg., 2d Reg. Sess. (Idaho 2020).
4. Id.
5. Id.
6. Compl. for Declaratory & Injunctive Relief, Hecox v. Little, No. 1:20-cv-00184-CWD (D. Idaho Apr. 15, 2020), https://www.aclu.org/legal-document/hecox-v-little-complaint.
7. The defendants in Hecox v. Little and other similar suits rely heavily on unscientific and unfounded claims that trans women have an athletic advantage over cis women athletes. For an in-depth discussion and rebuttal of this false narrative, we recommend the amicus brief in Hecox authored by the National Women’s Law Center, Lawyers’ Committee for Civil Rights Under Law, and 60 other organizations. See Brief for the National Women’s Law Center for Civil Rights Under Law as Amicus Curiae, Hecox v. Little, Nos. 20-35813 and 20-35815 (D. Idaho Dec. 21, 2020), https://tinyurl.com/2b9tuwvr.
8. Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020) (granting preliminary injunction). Judge Nye didn’t rule on the plaintiffs’ Title IX claim because ruling on the Fourteenth Amendment was enough to issue the injunction.
9. Id.
10. Hear a recording of these arguments on the Court Listener website at https://www.courtlistener.com/audio/76256/lindsay-hecox-v-bradley-little.
11. Idaho H.R. 500.
12. The bills are being pushed by the Alliance Defending Freedom, a conservative Christian nonprofit organization. See Dan Avery, State Anti-Transgender Bills Represent Coordinated Attack, Advocates Say, NBC News, Feb. 17, 2021, https://tinyurl.com/dcw24des.
13. The states that introduced legislation in 2021 banning transgender girls and women from competing in school sports are Alabama, Arizona, Arkansas, Connecticut, Florida, Georgia, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin. (Chart on file with author.)
14. John Bowden, Kristi Noem Rejects Signing Transgender Sports Bill, The Hill, Mar. 21, 2021, https://tinyurl.com/5e7b4ys6.
15. Id.; S.D. Exec. Order Nos. 2021-05 and -06 (Mar. 29, 2021).
16. Kan. Office of the Governor, Governor Laura Kelly Vetoes Divisive Transgender Sports Bill, Keeps Kansas Welcoming and Open for Business, Apr. 22, 2021, https://tinyurl.com/4hh2vry2.
17. La. Office of the Governor, Edwards Vetoes Senate Bill 156 From the 2021 Regular Session, June 22, 2021, https://tinyurl.com/2ecx85jf; Adam Willis, North Dakota’s Transgender Athlete Bill Dies After Veto Override Comes Up Short, Grand Forks Herald, Apr. 22, 2021, https://tinyurl.com/3y5j5352.
18. S. 354, 93rd Leg., Reg. Sess. (Ark. 2021).
19. S. 2536, Reg. Sess. (Miss. 2021).
20. H.R. 3, Reg. Sess. (Tenn. 2021).
21. B.P.J. v. W. Va. St. Bd. of Ed., 2021 WL 3081883 (S.D. W. Va. July 21, 2021) (granting preliminary injunction).
22. D.N. v. DeSantis, 2021 WL 2688957 (S.D. Fla. June 29, 2021).
23. Aryn Fields, Human Rights Campaign Files Lawsuit Against Florida’s Transgender Sports Ban & Announces Future Litigation in Arkansas, Mississippi, and Tennessee, Hum. Rts. Campaign, June 30, 2021, https://tinyurl.com/pe5umec6.
24. Statement of Interest of the United States, B.P.J. v. W. Va. St. Bd. of Ed., No. 2:21-cv-00316 (S.D. W. Va. June 17, 2021).
25. Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton Cty., 86 Fed. Reg. 32,637 (June 22, 2021).
26. Shoshana K. Goldberg, Fair Play: The Importance of Sports Participation for Transgender Youth, Ctr. for American Progress, Feb. 8, 2021, https://tinyurl.com/2y7ynzuy.