A federal appeals court panel heard arguments Monday in a case about Idaho鈥檚 law barring transgender females from girls鈥� and women鈥檚 school sports. The case is a major skirmish in a nationwide conflict over the rights of transgender students and those who feel threatened by their participation in sports or their using school facilities consistent with their gender identity.
鈥淪ome of this stuff seems silly,鈥� Senior U.S. Circuit Judge Andrew J. Kleinfeld said during the arguments in Hecox v. Little, referring to his concerns about the legal standing of one challenger to the Idaho law鈥攁 cisgender female high school student who fears she might face sex-verification testing to play sports because of her masculine appearance.
Kleinfeld was one of three members of a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reviewing a that blocked the state law, ruling that it likely violates the 14th Amendment鈥檚 equal-protection clause.
The suit was on behalf of the female student (identified in court papers as Jane Doe) who plays soccer on the girls鈥� team at Boise High School, as well as by Lindsay Hecox, a transgender track athlete currently on leave from Boise State University.
鈥淭he entirety of the legislative debate surrounding the law and the singular effect of the law is to exclude transgender women and girls, and only trans women and girls, from sports altogether,鈥� Chase Strangio of the ACLU said during the 40-minute oral argument conducted remotely.
Kleinfeld said he thought the law鈥檚 purpose 鈥渨as to let girls not have to compete with boys because the boys tend to be bigger and stronger and that doesn鈥檛 give the girls a fair shot at winning.鈥�
Kleinfeld also suggested Hecox鈥檚 challenge of the Idaho law was moot because she was no longer attending Boise State. And he said Doe, the high school student, had highly speculative concerns about being subjected to sex verification. (However, the Idaho law does allow anyone to dispute the sex of participants in girls鈥� and women鈥檚 sports, which could lead to testing that the ACLU calls invasive.)
Kleinfeld, 75, said that the girls he knew in high school mostly had boys as friends and wore pants instead of dresses.
鈥淕ee, you hardly see any women in dresses except religious women,鈥� the judge said. He discounted Doe鈥檚 worries about facing sex verification.
鈥淚t鈥檚 not like East German athletes during the Soviet era,鈥� Kleinfeld said. 鈥淣obody鈥檚 ever suggested [Doe] is not entirely female.鈥�
Strangio said Hecox is planning to return to Boise State and try out for the track team again, while Doe has a legitimate concern about the sex-verification procedures of the Idaho statute.
Defenders say the Idaho law represents 鈥榓 tough policy choice鈥�
Kleinfeld heard the case along with two other members of the Pasadena, Calif.-based panel, Judge Ronald M. Gould and Judge Kim McLane Wardlaw. Gould did not speak during the argument. Wardlaw asked a few probing questions of the two lawyers who argued in defense of the Idaho law, suggesting that one provision of the law 鈥渨ould appear to target transgender鈥� athletes.
W. Scott Zanzig, a deputy attorney general of Idaho, said there was no 鈥渋nvidious intent鈥� by the Idaho legislature to harm transgender athletes with this law.
鈥淭his is not animus at work here,鈥� Zanzig said. 鈥淭his is just a tough policy choice that many respected voices differ on. Idaho has chosen one way, and the equal-protection clause should not dictate its policy choices.鈥�
Several other states have enacted or are considering similar laws meant to bar transgender female athletes from girls鈥� and women鈥檚 sports.
Roger G. Brooks, a lawyer with the Alliance Defending Freedom, also defended the law before the panel. The Scottsdale, Ariz.-based conservative legal organization who intervened in the suit and say they have repeatedly raced and lost in cross country to a transgender female athlete.
Brooks noted that the National Collegiate Athletic Association has policies permitting transgender female athletes to participate in women鈥檚 sports after one year of testosterone suppression therapy.
But such a policy, which the Idaho High School Activities Association also has, does not result in 鈥渂iological males鈥� lowering their testosterone levels to those of 鈥渂iological females,鈥� Brooks said.
Kleinfeld suggested that a transgender female college athlete who was born 鈥渂iologically male鈥� and had one year of testosterone suppression still 鈥渉ad 19 years of building a bigger body, bigger bones, bigger muscles, as typically happens with males.鈥�
Brooks quickly agreed with the judge.
鈥淭here are bells you can鈥檛 unring when it comes to going through male puberty,鈥� Brooks said.
One voice the 9th Circuit panel did not hear from Monday was the federal government. President Donald Trump鈥檚 administration had filed a brief in the appeals court last year supporting the Idaho law. In February, President Joe Biden鈥檚 administration withdrew that brief. The new administration has signaled its support for transgender students, though it apparently did not file a full brief of its own in the Idaho case.
A decision by the 9th Circuit panel is expected to take several months.
