Hecox v. Little

Equal ProtectionTrans YouthAthleticsIdahoDistrict of Idaho9th CircuitFourth AmendmentSearch & SeizurePrivacyFourteenth AmendmentDue ProcessFair Notice

May 7

Written By Mack Karbon

Ninth Circuit Court of Appeals

On appeal from the District of Idaho

Case No. 1:20-cv-00184-CWD (Dist. Ct.)
Case No. 20-35813 (9th Cir.)
Case No. 24-38 (U.S. Supreme Court)

STATUS: ONGOING

Case Information

In 2020, Idaho enacted a law, HB 500, that banned trans and intersex women and girls from participating in female sports. The law prevents trans girls from participating in girls’ sports even if they have female-typical hormone levels. Additionally, according to the plaintiffs, the law is crafted to humiliate and degrade the dignity of femme-presenting athletes by requiring, upon a “dispute regarding” their sex, to submit to invasive physical examinations and genetic testing in order to “verify” the students’ “biological sex.” The bill fails to specify what reproductive anatomy, genetic makeup, or “normal” endogenously-produced testosterone levels are sufficient to “verify” a student’s “biological sex.” The law also does not define “biological sex.”

Plaintiff Lindsay Hecox is an adult student-athlete who, at the time of the complaint, was a freshman at Boise State University. Ms. Hecox had hopes of trying out for the University’s track and field team in August of 2020. Under the NCAA rules in place at the time, Lindsay would have been able to try out for the women’s team; however, HB 500 would have prohibited her from doing so.

Plaintiff Jane Doe is a high school cisgender girl and soccer player. Jane has a self-described “athletic build” and is known for being exceedingly skilled in her sport. She reasonably feared that her skills and physical appearance would lead to a “dispute regarding” her sex, forcing her to undergo a humiliating and invasive genital examination just so she can keep playing on her team. Jane is a minor child.

Notably, H.B. 500 applies exclusively to female athletes in female sports; it does not restrict trans males’ participation in men’s and boys’ sports.

As the plaintiffs pointed out in their April 2020 complaint, Idaho was the first state to “categorically bar the participation of a subset of women in women’s student athletics because they are transgender and/or intersex.” At the time of the complaint, no elite athletic body regulating sports nationally or globally – including the NCAA or the Olympics – had such a categorical bar.

Initial Proceedings

Plaintiffs filed a complaint in April of 2020, puting forth several counts:

Discrimination on the basis of sex, gender, and transgender status in violation of the Equal Protection Clause of the Fourteenth Amendment.
Infringement upon plaintiffs’ right to informational privacy in violation of the Due Process Clause of the Fourteenth Amendment;
Violation of the Fourth Amendment Search and Seizure Clause for (1) government-compelled and medically unnecessary pelvic examinations, transvaginal pelvic ultrasounds, blood tests, and genetic tests; and (2) government-compelled disclosure of private medical information with no legitimate reason or purpose;
Discrimination on the basis of sex in violation of Title IX, as evidenced by the fact that only girls and women can be excluded from participation in sports under HB 500, and because the “implementing regulations for Title IX permit sports teams to be separated by sex but do not mandate such separation”;
Lack of fair notice in violation of Due Process Clause of the Fourteenth Amendment.

Plaintiffs subsequently asked the court to preliminarily enjoin enforcement of the law. Defendants moved to dismiss. In August of 2020, weeks before law was set to go into effect, the district court GRANTED plaintiffs’ motion for a preliminary injunction, temporarily blocking enforcement of the law. In the decision, the court notes that the defendants failed to identify 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.” The decision further found that the law’s privacy provisions fail to achieve their alleged purpose “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.”

Appeal to the Ninth Circuit

Defendants-Appellants appealed to the Ninth Circuit Court of Appeals, arguing that the district court’s granting of the preliminary injunction was in error. In August of 2023, a split panel issued a decision upholding the district court’s grant of injunctive relief. Judge Kim McLane Wardlaw, writing for the majority, stated: “Because the Act subjects only women and girls who wish to participate in public school athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on “female[], women, or girls” teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we AFFIRM the district court’s grant of preliminary injunctive relief.”

Defendants petitioned the court for en banc (full court) review. However, before the court could rule, the Supreme Court on April 15, 2024, issued a devastating PARTIAL STAY in the Ninth Circuit case of Poe v. Labrador. The high Court’s order temporarily revives HB 71, an Idaho law that broadly bans gender-affirming care for trans youth and threatens medical providers who provide such care with a felony conviction and up to 10 years in prison.

On April 29, 2024, the appellate court announced that its August 2023 decision upholding injunctive relief was WITHDRAWN in light of the Supreme Court’s stay order in Poe. The announcement provides that “[an] amended opinion will follow in due course.”

The Court issued an amended opinion in June 7, 2024, holding that the district court had not abused its discretion in issuing a preliminary injunction, but nonetheless cabined the injunction to the Plaintiff, Lindsay Hecox, alone, allowing the ban to be applied to any “non-parties,” meaning every other trans or intersex athlete within the state. The court “remand[ed] this case to the district court to reconsider the appropriate scope of injunctive relief in light of the Supreme Court’s decision in Labrador v. Poe.”

On June 11, 2024, defendants filed a petition for review with the U.S. Supreme Court. The question presented is “[w]hether 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.” The parties submitted briefs, and the case was distributed to the Justices for conference.

As of February 2, 2025, the Justices have not yet decided if they will review this case. District court proceedings have been stayed pending the Court’s decision.