A lawsuit challenging Idaho’s ban on transgender athletes participating in girls and women’s sports can go forward because the plaintiff’s temporary withdrawal from school doesn’t require dismissal.
Lindsey Hecox’s leave of absence from Boise State University doesn’t make the claims moot because she re-enrolled and is playing on the women’s club soccer team, the US Court of Appeals for the Ninth Circuit ruled.
“While Hecox did not try out for the women’s cross-country and track teams in Fall 2022, due to illness and her father’s passing last spring, she has declared that she has concrete plans to try out for the track and cross-country teams in Fall 2023,” the court said.
The court rejected the argument of two intervenors seeking to uphold the law—Madison Kenyon and Mary Marshall, cisgender women who run track and cross country at Idaho State University—that the case can’t be revived based on facts that developed after it became moot.
Idaho Gov. Bradley Little (R) signed HB 500 into law March 30, 2020, making Idaho the first state to categorically bar transgender and intersex athletes from competing in women’s sports.
Hecox and a co-plaintiff identified as Jane Doe, then a high school student, challenged the law on the ground that it unconstitutionally discriminates against transgender girls and women. Doe has since graduated.
The US District Court for the District of Idaho in August 2020 barred the enforcement of the act while the case is pending. The state appealed that decision to the Ninth Circuit the following month.
The appeals court in June 2021
In a separate case, the US Court of Appeals for the Second Circuit on Dec. 16 upheld the dismissal of a challenge to a Connecticut policy allowing transgender students to participate in organized sports consistent with their gender identity in public high schools.
The cisgender female athletes who brought the suit failed to establish injury or that they’re entitled to seek monetary damages, the Second Circuit said.
Dozens of states have introduced legislation similar to the Idaho law, according to the American Civil Liberties Union.
Judges Kim McLane Wardlaw, Ronald M. Gould, and Andrew J. Kleinfeld issued the ruling.
Cooley LLP, ACLU Foundation, and Legal Voice represent Hecox and Doe. Alliance Defending Freedom represents the intervenors. The Idaho Office of the Attorney General represents the state.
The case is Hecox v. Little, 9th Cir., No. 20-35813, unpublished 1/30/23.
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