David C. Nye, the Chief U.S. District Judge for Idaho, issued an injunction on August 17 to block enforcement of Idaho’s Fairness in Women’s Sports Act, which Governor Bradley Little had signed into law on March 30. Hecox v. Little, 2020 U.S. Dist. LEXIS 149442. Passage of this law made Idaho the first state to enact a statutory ban on transgender women and girls competing in women’s interscholastic sports at all levels.
The statute was not enacted in response to any particular incident or crisis involving transgender women in Idaho seeking to compete in women’s sports. Rather, it appears to have been inspired by news reports about incidents in other states, and in particular a lawsuit filed by some cisgender girls in Connecticut who were upset that the interscholastic sports association in that state had adopted a policy of allowing transgender women to compete as women.
Judge Nye pointed out that various professional associations governing women’s interscholastic sports have adopted rules that transgender women would be eligible to compete in women’s sports after having undergone at least one year of hormone therapy to suppress their testosterone levels, based on evidence showing that this would not pose unfair competition to cisgender women.
Despite the lack of any sort of emergency, the Idaho legislature actually delayed by a few days joining the nationwide trend of moving legislative activity on-line in the face of the coronavirus pandemic in order to enact two anti-transgender bills: this one, which the Republican State Attorney General warned them would present legal issues under the Constitution and Title IX of the Education Amendments of 1972, and a bill reviving a ban on issuing new birth certificates for transgender individuals, passed in defiance of an injunction issued by the federal court against a similar previous statute. It was clearly anti-trans month in the Idaho legislature.
In addition to excluding transgender women from competing in any organized or team sports activity that was designated for women only, the law empowered anybody to challenge the female sex of a participant, placing the burden on the challenged individual to provide evidence of their female sex according to a definition that in essence considers transgender women to be men. The law also authorized anybody who claimed to have been harmed by a violation of the statute to sue for damages.
The ACLU filed suit on behalf of Lindsay Hecox, transgender girl interested in competing in women’s sports, and a cisgender girl allowed to proceed anonymously as Jane Doe, both challenging the law on constitutional and statutory grounds, and seeking a preliminary injunction to prevent the law from going into effect while the lawsuit plays out. Jane Doe argued that the law subjected her to the possibility of being challenged as to her sex and subjected to invasive procedures. The state responded with a motion to dismiss the case, and two cisgender women filed a motion to intervene as co-defendants, claiming that they would be harmed by being subjected to unfair competition from transgender women if the law was blocked. Of course, the Trump Administrative, which is not a party to litigation involving a state law, filed a statement of interest, supporting Idaho’s right to exclude transgender women from competition.
Much of Judge Nye’s decision was taken up with the questions of whether the lawsuit was filed prematurely, whether the plaintiffs had standing to sue, and whether to grant the motion by the cisgender women to intervene. He dealt with those issues at length, ultimately concluding that the plaintiffs did have a personal stake in the outcome of the case and that the law, as written, was subject to a pre-enforcement legal challenge. The question of intervention was a closer call, but the judge resolved it in favor of allowing intervention.
However, he concluded that it was inappropriate to dismiss the case because this was a clear case of discrimination due to transgender status, and the Supreme Court’s June 15 decision in Bostock v. Clayton County clearly shows that such discrimination is discrimination “because of sex,” and thus subject to “heightened scrutiny” from the court in an Equal Protection challenge. When a law is subject to heightened scrutiny, it does not enjoy the normal presumption of constitutionality. Rather, the state has a burden of justification, to show that the law substantially advances an important state interest. Furthermore, as the Supreme Court held years ago in an opinion by Justice Ruth Bader Ginsburg finding the Virginia Military Institute’s men-only admissions policy to be unconstitutional, a law that discriminates because of sex will only survive judicial review if the state has an “exceedingly persuasive” justification for it.
In this case, however, such a justification was lacking, as Judge Nye found when he turned to the issue of a preliminary injunction. Prior to the passage of the law there had been no official state policy restricting transgender women from competing as women, so this injunction was about maintaining the status quo while the lawsuit was under way. Judge Nye weighed the factors courts are supposed to consider when determining whether to interfere with the legislature’s lawmaking power by blocking enforcement of a new statute, and resolved the issue against the state.
The state’s purported justification for the law was to “ensure equality and opportunities” for female athletes, but the court was not persuaded that law would substantially advance that goal. “Ultimately,” Nye wrote, “the Court must hear testimony from the experts at trial and weigh both their credibility and the extent of the scientific evidence. However, the incredibly small percentage of transgender women athletes in general, coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they have undergone hormone suppression in particular, suggest the Act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.”
Taking note of existing rules in scholastic competition that transgender girls could not compete as women until they had undergone a year of testosterone suppression therapy, he could find little rationale for the law. “In short, the State has not identified a legitimate interest served by the Act that the preexisting rules in Idaho did not already address, other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics,” he concluded. “As such, Lindsay is likely to succeed on the merits of her equal protection claim. Again, at this stage, the Court only discusses the ‘likelihood’ of success based on the information currently in the record. Actual success—or failure—on the merits will be determined at a later stage.”
However, he continued, “Instead of ensuring ‘long-term benefits that flow from success in athletic endeavors for women and girls,’ it appears that the Act hinders those benefits by subjecting women and girls to unequal treatment, excluding some from participating in sports at all, incentivizing harassment and exclusionary behavior, and authorizing invasive bodily examinations. In the absence of any evidence that transgender women threatened equality in sports, girls’ athletic opportunities, or girls’ access to scholarships in Idaho during the ten years such policies were in place, neither Defendants nor the Intervenors would be harmed by returning to this status quo.”
Thus, the Idaho legislature is 0 for 2 on its decision to prolong the legislative session in the face of the pandemic, as a different federal judge has already reiterated that the injunction against the prior birth certificate law remains in effect as the lawsuit against the new birth certificate law – which was disingenuously worded to distinguish itself from the earlier one – continues.
The plaintiffs are represented by the ACLU. Judge Nye, who had served as a state court judge for several years, was nominated to the district court by President Obama during his last year in office, 2016, when Mitch McConnell and the Republican majority were refusing to confirm any of Obama’s nominees. But Nye, a graduate of Brigham Young University’s Law School with a good reputation who earned the ABA’s highest rating, was nominated on the recommendation of Idaho’s two conservative Republican senators, who then asked President Trump to re-nominate him in 2017, and he quickly became Chief Judge when an elderly colleague retired shortly thereafter. So here is the irony: Just as Trump’s first Supreme Court nominee wrote the opinion protecting transgender people under Title VII, one of his first district court nominees has rejected the position of the Trump Administration’s statement of interest filed in this case.