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Appeals court not itching to overturn Idaho transgender sports ban, hearing suggests

"What case is left for us to decide?" judge asks, since transgender plaintiff has not resolved to compete again.

Updated: May 6, 2021 - 12:47pm

Oral arguments before 9th U.S. Circuit Court of Appeals Tuesday provided a hint that the panel may be disinclined to strike down an Idaho law that bars biological males from competing in female sports.

When a judge last week threw out a lawsuit by female student athletes against a Connecticut policy on transgender participation in athletics, he noted the transgender track stars that prompted the challenge had already graduated.

Until biologically female athletes face "male-bodied" athletes again, U.S. District Judge Robert Chatigny ruled, the litigation couldn't go anywhere.

The 9th Circuit floated the same mootness option when reviewing Idaho's Fairness in Women's Sports Act (HB 500), which would allow the law to finally take effect.

It bars "students of the male sex" from competing in girls' sports at the K-12 and collegiate level, but sets up a dispute mechanism. Schools must ask students who wish to compete to provide a statement from their healthcare provider that verifies their biological sex. The provider "may verify the student's sex as part of a routine sports physical examination relying only on one or more of the following: the student's reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels."

The ACLU is challenging the law on behalf of transgender athlete Lindsay Hecox and cisgender athlete "Jane Doe." While the Trump administration sided with Idaho, a lower court blocked the law last summer.

At oral argument Monday night, Judge Andrew Kleinfeld said it wasn't clear that Hecox was actually going to return to Boise State University and seek to compete on the track team. 

"What case is left for us to decide?" Kleinfeld asked ACLU lawyer Chase Strangio, pointing to Supreme Court precedent: The student hasn't even filed a declaration pledging to come back. Strangio replied that "counsel's representation" of Hecox's pledged return is enough to continue the case.

Jane Doe may not have standing to sue because no one has questioned whether she's "entirely female," Kleinfeld said: She fears being subjected to repeated physician's exams because of her masculine build and penchant for male-associated clothes, but "you hardly see women in dresses" anymore.

Appointed by President George H.W. Bush, Kleinfeld was receptive to the argument that biological differences between the sexes can't be overcome through hormone therapy. President Bill Clinton's appointees were harder to read. 

Judge Kim Wardlaw pushed back somewhat on arguments by lawyers for Idaho and the Alliance Defending Freedom, which is representing biologically female student athletes who support the law. Judge Ronald Gould only asked one question: whether the law bars girls from boys' teams, which it does not.

The ACLU and alliance declined to comment on whether a mootness finding seemed likely after Monday's argument.

Testosterone suppression does not "reliably" produce female hormone level

Echoing the Trump administration's argument, Idaho Deputy Attorney General Scott Zanzig said the 9th Circuit long ago upheld an Arizona policy that barred biological males from women's sports but not vice versa.

The so-called Clark cases affirmed that physiological differences between the sexes are real and important in athletics, even if the Clark brothers had "really low testosterone levels" closer to women, he said. 

Judge Wardlaw wasn't convinced that Idaho's law didn't single out transgender women, as opposed to treating all males equally. "It's not targeting anyone to say we're going to decide how to determine what sex you are," Zanzig replied, just as a law that prohibits "all head coverings" can't be termed "proxy facial discrimination" against Jews.

The statute can't violate the Constitution's equal protection clause without "proof of invidious discrimination" — that it was motivated by "animus" against a protected group, Zanzig argued. "This is just a tough policy choice that many respected voices differ on," he said.

No one claims there's a constitutional right to athletic competition based on gender identity, alliance lawyer Roger Brooks argued. He accused the lower court of "constitutionaliz[ing]" NCAA policy, which requires a year of testosterone suppression before competing on girls' teams.

When Brooks claimed that everyone agrees biological males should take "major medical steps to change their biology" before competing as transgender women, Judge Wardlaw noted that the one-year suppression policy was also Idaho law before HB-500.

This policy was not meaningfully enforced and is beside the point, the lawyer responded. Evidence in the record shows that the "standard suppression protocol" does not "reliably" lower biological male testosterone levels to those of biological females, and Hecox has not claimed to have reached a biologically female testosterone level, either.

Kleinfeld helped Brooks make his argument. A transgender woman who tries out for a college women's team has had "19 years of building a bigger body, bigger muscles [and] bigger bones," regardless of a year of testosterone suppression, the judge said. 

"It would violate the core of their being" to compete on men's teams

Strangio, the ACLU lawyer, struggled to convince Judge Kleinfled that the law actually discriminated against transgender women as such.

The text uses a "gerrymandered definition of biological sex, which is drawn intentionally narrowly" to exclude the "primary driver of performance differences" between the sexes, Strangio argued.

"The entirety of the legislative debate" was about identifying transgender women to "root them out," while letting men of any gender identity compete however they want, he said. Forcing Hecox to compete on men's teams "would undermine her medical treatment" and humiliate her.

It's not a matter of protecting transgender women from stiffer competition on men's teams, the lawyer argued: "It would violate the core of their being" to be branded as male in sports while identifying as female at all other times. 

The Clark cases are not relevant to transgender issues because they were predicated on the potential of "substantial displacement" of women in their own sports, according to Strangio. "We have decades of practical experience" of transgender women competing in women's sports, and only four examples of such athletes seriously challenging cisgender women, he claimed.

Idaho's law targets a "historically disadvantaged" demographic and subjects them to "intrusive" sex verification every time they step on a field, the lawyer concluded.

Monday's hearing "was another reminder of how much misinformation fuels these attacks" on young trans lives, Strangio said in a written statement Tuesday. The ACLU will keep fighting "in court, in legislatures and in the streets" to stop these "relentless efforts to push trans people out of public life."

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