Freeze on Idaho’s transgender athlete ban faces new challenges

Idaho’s Fairness in Women’s Sports Act, which bars transgender women and girls from competing on collegiate and K-12 women’s and girls’ sports teams, hasn’t been active for over a year while it’s being challenged in court. Now, the law’s defenders are pushing a federal district court to unfreeze enforcement.

The legal challenge, made in the Hecox v. Little case, led a judge to freeze, or enjoin, the ban in August 2020 to prevent “irreparable” harm to two student-athletes who brought forth the challenge. But in June, a higher court remanded, or sent the case back to a lower court, because both students were no longer enrolled in their perspective schools and wouldn’t be immediately affected by the law. As stakeholders make written arguments to that lower court this month, the near-term fate of the Idaho law could depend on whether a judge believes one of those athletes, a transgender woman named Lindsay Hecox, still has a stake in the case.

The Idaho Attorney General’s office, tasked with defending the law, argues she doesn’t. Hecox withdrew from Boise State University a week after unsuccessfully trying out for the women’s cross-country team last school year, rendering her claims moot, a brief filed earlier this month by the Attorney General argued.

“For over a year, the preliminary injunction impinged Idaho’s sovereignty while providing no relief to Hecox,” the brief reads.

But Hecox has already registered for classes for the 2022 spring semester, with plans to play women’s club soccer in the spring and again try out for the cross-country team in the fall, her attorneys wrote in a responding brief. So, it’s possible she’d again be affected by the ban if it’s enforced.

“Lindsay’s case should not be dismissed as moot unless it is ‘absolutely clear that Lindsay will never again be subject to (the law),’ ” attorneys from the American Civil Liberties Union of Idaho and two law firms wrote.

The second woman listed in the case is Kayden Hulquist, a cisgender soccer player who worried she’d have to undergo invasive medical exams to verify her sex when she played for Boise High School. Hulquist, referred to as Jane Doe when she was a minor, has since graduated. That’s another reason the Ninth Circuit Appeals Court remanded the case to a district court to unpack the mootness challenge being made before the case moves forward.

Now, the law’s challengers and defenders are placing the focus on Hecox.

Lawyers representing two cisgender runners for Idaho State University’s women’s cross-country team cast doubt on Hecox’s ability to make BSU’s team on a second attempt, and consequentially, the harm the ban would cause her. In a brief, attorneys said Hecox’s claims are “contingent and speculative” as a result. (Those attorneys include Skaug Law’s state Rep. Bruce Skaug, R-Nampa, and former Rep. Raúl Labrador, who is running against incumbent Lawrence Wasden to be Idaho’s next Attorney General.)

But Hecox’s attorneys defend that her more recent plans to play club soccer are a key interest, too. And despite the doubt cast by Wasden’s office, her attorneys say she’s better equipped financially and emotionally to handle the burdens of college that caused her to withdraw now that she’s on track to get cheaper in-state tuition this spring.

Wasden’s office urged the court to dismiss Hecox’s claims in the meantime and allow her to ask that the law be frozen again if she stays enrolled and makes the cross-country team next fall. The court’s coming response could determine whether the transgender athlete ban is activated during a school year for the first time since it was passed.

The Attorney General has been active in defending the ban nationally, too. Wasden’s office signed onto a letter clashing with the Biden administration on transgender student protections in July of this year, and joined a related lawsuit in August. Wasden’s office cited its stake in Hecox v. Little in making both moves.

The Fairness in Women’s Sports Act was passed by the Legislature’s Republican supermajority in 2020 after the Alliance Defending Freedom, a conservative nonprofit in Arizona that is representing the ISU athletes in Hecox v. Little, helped lawmakers craft it.

The law’s enforcement was enjoined around two months after it became active on June 1 of that year.

The fate of the law remains unclear over a year later. After the district court stops accepting reply briefs Dec. 3, it could schedule a hearing to take up the mootness issue, Attorney General’s spokesperson Scott Graf told EdNews by email. “That would obviously push a decision out further,” he wrote.