Transgender legal advocates filed Wednesday in federal court a lawsuit challenging Idaho’s newly enacted law barring transgender athletes from participating in women’s sports.
Among the plaintiffs in the litigation is Lindsay Hecox, a 19-year-old woman attending Boise State University who seeks to participate in the intercollegiate track and cross-country teams at the school.
“I just want to run with other girls on the team,” Hecox said in a statement. “I run for myself, but part of what I enjoy about the sport is building the relationships with a team. I’m a girl, and the right team for me is the girls’ team.”
HB 500, quietly signed into law last month by Idaho Gov. Brad Little amid the coronavirus epidemic, is the first and only state law in the country that bars transgender athletes from participating in school sports. Similar anti-trans measures, however, have been percolating in state legislatures throughout the country.
The transgender legal advocates who filed the 60-page complaint before the U.S. District Court in Idaho are the American Civil Liberties Union, the ACLU of Idaho, Legal Voice and Cooley LLP.
ACLU of Idaho Legal Director Ritchie Eppink said in a statement Idaho residents “have been fighting this hateful, unconstitutional legislation since it was introduced.”
“Businesses, major employers, schools, doctors, and counselors have all warned that this law is terrible for Idaho,” Eppink said.
Hecox, in a Zoom call with reporters on Wednesday, told the Washington Blade she was amid her studies at the time HB 509 was moving through the legislative process, but still actively opposed and testified against it before the Idaho State Senate.
“As it got to the governor’s desk, I was pretty sure that it was going to pass,” Hecox said. “I am an optimist by nature, but it was not likely to be vetoed because of the political leanings of this state, and when I eventually did hear the news, I was more or less just sad, but not defeated.”
Dubbed the “Fairness in Women’s Sports Act,” HB 500 requires college and public school sports teams to be designed as male, female and co-ed — and any female athletic team “shall not be open to students of the male sex.”
In the event of a dispute, a student may be required to produce a physician’s statement to affirm her biological sex based on reproductive anatomy, normal endogenously produced levels of testosterone and an analysis of the student’s genetic makeup. That would effectively ban transgender athletes from participating in sports.
Another plaintiff in the lawsuit, anonymously referred to as Jane Doe, is a non-trans female athlete at Boise High School who seeks to try out for soccer in August 2020, but fears she could be forced to provide documentation about her sex under HB 500 and believes that would violate “her privacy and security, both emotionally and physically, if she continues to play sports.”
Catherine West, a staff attorney at Legal Voice, said in a statement HB 500 harms not just transgender athletes, but women seeking to participate in sports.
“Embedding this discrimination into Idaho law is unnecessary and harmful to all,” West said. “Female athletes deserve to play, not endure invasive testing or internal and external exams.”
According to the lawsuit, existing rules in Idaho prior to HB 500 already required transgender girls to “complete one year of hormone treatment related to the gender transition before competing on a girls team.” Further, there were no reported issues with the administration of that rule or its effect on athletics in Idaho, the complaint says.
“We’re suing because HB 500 illegally targets women and girls who are transgender and intersex and subjects all female athletes to the possibility of invasive genital and genetic screenings,” Gabriel Arkles, senior staff attorney with the ACLU’s LGBT & HIV Project said in a statement. “In Idaho and around the country, transgender people of all ages have been participating in sports consistent with their gender identity for years. Inclusive teams support all athletes and encourage participation — this should be the standard for all school sports.”
The lawsuit challenges the law on the basis that it violates the rights to equal protection and due process under the Fourteenth Amendment of the U.S. Constitution; the prohibition on unconstitutional search and seizure under the Fourth Amendment; Title IX of the Education Amendments of 1972, which bars discrimination in schools on the basis of sex; and the “lack of fair notice” principle of the Fourteenth Amendment.
Before Little signed HB 500, Idaho Attorney General Lawrence Wasden had warned the legislation was “constitutionally problematic” and would likely violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. A Wasden spokesperson, citing a policy of no comment on pending litigation, declined to comment on the lawsuit.
But HB 500 was one of two anti-trans bills Little signed into law last month. The other was HB 509, which bars transgender people in Idaho from changing the gender marker on their birth certificates consistent with their gender identity.
Little signed that measure into law in defiance of a court order in 2018 requiring Idaho to allow transgender individuals to change the gender marker on the birth certificates.
The LGBTQ legal group Lambda Legal obtained the previous court order and threatened additional legal action if HB 509 passed. A Lambda spokesperson told the Blade action against HB 509 “could happen pretty soon.”
[UPDATE 4/16/2020: Lambda Legal on Thursday filed a motion with the U.S. District Court of the Idaho to confirm that the 2018 order bars enforcement of HB 509.
“Permanent means permanent,” Lambda Legal Counsel Peter Renn said in a statement. “It is shocking that state lawmakers would be so brazenly lawless as to defy a federal court ruling. The rule of law collapses if we refuse to abide by the outcome of who wins and who loses in our system of justice. HB 509, which reinstates a ban that the court already declared unconstitutional, is a naked flouting of the rule of law.”]
The litigation against HB 500 is filed as the U.S. Supreme Court is expected to soon rule whether anti-LGBTQ discrimination in employment is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964.
Although that decision is directly related to employment, it could have an impact on all federal laws barring discrimination on the basis of sex, including Title IX, which forms a component of the complaint against HB 500.
In the Zoom call with reporters, the ACLU’s Arkles said the Title VII ruling “could have implications” for how the courts interpret Title IX, but “not necessarily” because the two federal laws are structured differently and that argument forms just one component of the lawsuit against HB 500.
“There are several other claims in this case that would not necessarily be impacted by a decision in [the Supreme Court case],” Arkles said. “In addition to the Title IX claim, we’re also bringing claims under the U.S. Constitution, based on the equal protection clause, the protection against unreasonable search and seizure and invasion of privacy.”
The litigation is needed now before the Supreme Court has ruled and issued clarity on federal law, Arkles said, because plaintiffs need immediate relief.
“We brought it now because, the need is urgent,” Arkles said. “So assuming that fall sports go ahead as planned, this law is going to have an impact on Linsday in a few short months, so really it wasn’t any time for us to wait.”