Little v. Hecox

Women and girls have overcome decades of discrimination to achieve a more equal playing field in many arenas of American life-including sports. Yet in some competitions, female athletes have become bystanders in their own sports as male athletes who identify as female have taken the place of their female competitors-on the field and on the winners' podium. The Idaho Legislature addressed that injustice by enacting the Fairness in Women's Sports Act, which ensures that women and girls do not have to compete against men and boys no matter how those men and boys identify. The Act-one of 25 such state laws around the country-is consistent with longstanding government policies preserving women's and girls' sports due to the "average real differences" between the sexes. Clark ex rel. Clark v. Ariz. Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th Cir. 1982). Breaking with this Court's precedents, its own caselaw, other circuit decisions, and biological reality, the Ninth Circuit panel here upheld an injunction against the Act because it prevents "transgender women and girls"-meaning males who identify as women and girls-from competing in "women's student athletics." App.4a-5a. The question presented is: Whether laws that seek to protect women's and girls' sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.

In 2020, Idaho enacted the Fairness in Women’s Sports Act, which categorically barred transgender girls and women from participating on female athletic teams in public schools—from elementary school through college. Prior to the law’s passage, Idaho’s high school athletic association and the NCAA allowed transgender women to compete on women’s teams after a year of hormone therapy. At the time, there were no known instances of transgender girls competing in Idaho athletics under those existing rules. Nonetheless, Idaho lawmakers passed the Act, citing concerns about “fairness” and biological differences attributed to testosterone and other factors. The law allowed any individual to challenge a female athlete’s gender, triggering a mandatory medical verification process that could include analysis of reproductive anatomy, genetic make-up, or testosterone levels. Cisgender women, including those perceived as more masculine, could also be subjected to these checks. Lindsay Hecox, a transgender woman and student at Boise State University who wished to join the women’s cross-country team, filed suit alongside a cisgender high school athlete known as Jane Doe. They alleged that the Act violated their constitutional rights, including the Equal Protection Clause of the Fourteenth Amendment. Hecox had undergone hormone therapy, significantly lowering her testosterone levels, but was still categorically excluded under the law. The district court granted a preliminary injunction blocking the law in August 2020, finding it likely unconstitutional. After several rounds of appeal and remand, the U.S. Court of Appeals for the Ninth Circuit ultimately affirmed the injunction as applied to Hecox but remanded the case to the district court to reconsider the scope of the injunction, especially in light of the Supreme Court’s 2024 decision in Labrador v. Poe.