Trump appointee blocks Idaho law banning trans-identified males from female sports

By Samuel Smith, Deputy Managing Editor Tuesday, August 18, 2020

A Trump appointee on Monday temporarily blocked an Idaho law that bans biologically male trans-identified athletes from competing in girls' and women’s sporting competitions at the high school and university levels, the only law in the country to do so.  

The "Fairness in Women’s Sports Act,” which was signed into law in March, was halted by David Nye, the chief U.S. district judge of the U.S. District Court for the District of Idaho.

Nye, who was appointed to the federal bench by Trump in 2017, ruled that plaintiffs suing to overturn the law "are likely to succeed in establishing” that the legislation is “unconstitutional as currently written." He granted a preliminary injunction against the law. 

Get Our Latest News for FREE

Subscribe to get daily/weekly email with the top stories (plus special offers!) from The Christian Post. Be the first to know.

Subscribe

“Based on the dearth of evidence in the record to show excluding transgender women from women’s sports supports sex equality, provides opportunities for women, or increases access to college scholarships, [the plaintiff] is likely to succeed in establishing the Act violates her right to equal protection,” the ruling states. 

“This likelihood is further enhanced by Defendants’ implausible argument that the Act does not actually ban transgender women, but instead only requires a health care provider’s verification stating that a transgender woman athlete is female.”

Nye’s decision puts Idaho’s enforcement of the policy on hold until the merits of the lawsuit against it can be considered. The American Civil Liberties Union is suing the state on behalf of a trans-identifying track athlete at Boise State University named Lindsay Hecox and three unnamed plaintiffs. 

According to the judge’s order, the defense counsel for the state confirmed during the oral arguments “that if [Hecox’s] health care provider signs a health form stating that [he] is female, [Hecox] can play women’s sports.”

Nye argued in his ruling that if the state will allow Hecox to participate in female sports if the student’s health care provider confirms that Hecox is “female,” such a loophole would essentially mean that the state’s argument that the law “ensures equality for female athletes by disallowing males on female teams falls away.” 

“Under this interpretation, the Act does not ensure sex-specific teams at all and is instead simply a means for the Idaho legislature to express its disapproval of transgender individuals,” Nye wrote. 

“The Act’s legislative findings reinforce the idea that the law is directed at excluding women and girls who are transgender, rather than on promoting sex equality and opportunities for women,” he added. 

In a statement, Hecox, who wants to try out for the track and cross-country teams at BSU, said he feels a “major sense of relief.”

“I love running, and part of what I enjoy about the sport is building relationships with a team,” Hecox said. “I’m a girl, and the right team for me is the girls’ team. It’s time courts recognize that and I am so glad that the court’s ruling does.”

Critics say that policies allowing biological male trans-identified athletes to compete in girls'-only sports will make it harder for biological female athletes to get scholarships because biological males have increased body and muscle mass as well as bone density. 

Some feminist critics of such policies say they allow biological males to steal athletic opportunities from women and girls and contradicts of Title IX protections. 

The lawsuit accuses the Idaho law of unlawfully discriminating against athletes who identify as transgender. The ACLU further argued that the law constitutes an invasion of privacy because it requires athletes to prove their birth sex if it is challenged. 

In addition to granting the preliminary injunction, Nye also granted a motion for two female collegiate track and cross-country athletes at Idaho State University in Pocatello — Madison Kenyon and Mary Kate Marshall — to intervene in defense of the law. 

Alliance Defending Freedom, a conservative legal nonprofit that represents the athletes, reported in a statement that both athletes are “well familiar with the difference in strength and speed between comparably gifted and trained male and female athletes.”

“Girls deserve to compete on a level playing field. Allowing males to compete in girls’ sports diminishes women’s athletic opportunities and destroys fair competition,” ADF Legal Counsel Christiana Holcomb said. 

“While it’s true that athletics is about more than winning, giving girls and women extra lessons in losing isn’t right. The Fairness in Women’s Sports Act is good law because it seeks to protect girls and women across Idaho. Our clients have already experienced the deflating experience of losing to a male runner, and this should not be allowed to continue.”

Earlier this year, the Trump administration weighed in on the issue when the Department of Education’s Office of Civil Rights sent a 45-page letter to several public school districts and the Connecticut Interscholastic Athletic Conference after a complaint was filed over the conference’s policy of allowing trans-identified male athletes to compete in female athletics competitions. 

Last year, Selina Soule, a track competitor at a school in Connecticut, said she just missed out on the opportunity to compete at an event attended by college scouts because two biological male trans-identified athletes were able to compete in a qualifying event. 

In its letter, the DOE explained that it might seek to deny federal tax dollars to Connecticut for violating Title IX civil rights law by allowing biologically male trans-identified athletes to compete in female sporting events.  

Idaho used the DOE letter in its defense of the law. However, Nye called into question the validity of the letter in light of the Supreme Court’s recent ruling in Bostock v. Clayton County, Georgia. 

The nation’s highest court ruled that federal law prohibits discrimination based on sexual orientation and gender identity even though those terms are not specifically included in federal nondiscrimination legislation passed by Congress.