U.S. appeals court considers Idaho transgender athletes ban

BOISE, Idaho -- A three-judge panel of a U.S. appeals court on Monday gave little indication of how it might rule concerning the constitutionality of the first law in the nation banning transgender women and girls from playing on women's sports teams.

The 9th Circuit panel in San Francisco heard arguments in the case that could have far-ranging consequences as more states follow conservative Idaho's lead.

Judges for a time focused on whether the case remained relevant because one of the plaintiffs, Lindsay Hecox, had dropped out of Boise State University after failing to qualify for the women's cross-country team. An attorney representing her said she planned to return in the fall and try out for the team again.

Judges also questioned whether the other plaintiff, who was born a biological girl and feared invasive tests contained in the Idaho law to prove her gender, had standing to sue.

It's possible the court could rule the case is no longer relevant, or moot, and dismiss it without ruling on its merits. Roger Brooks, an attorney with a Christian conservative group defending the Idaho law, said he hoped that didn't happen because the case needed a definitive ruling.

"This is a situation that is live and is going to be ongoing," he said at a news conference after the arguments.

Idaho passed its law last year, and more than 20 states have considered such proposals this year. Bans have been enacted in Alabama, Arkansas, Mississippi, Tennessee and West Virginia. Florida lawmakers passed a bill, and South Dakota's governor issued an executive order.

On Monday, conservative Republican lawmakers in Kansas failed to override Democratic Gov. Laura Kelly's veto of a proposed ban on transgender athletes in girls' and women's school sports.

Supporters say such laws are needed because transgender female athletes have physical advantages. Opponents say the law is discriminatory and, in Idaho, an invasion of privacy because of the tests required should an athlete's gender be challenged.

Lawmakers in Idaho have also argued that allowing transgender athletes on girls' and women's teams would negate nearly 50 years of progress women have made since the 1972 federal legislation credited with opening up sports to female athletes. But those opposed to the Idaho law have cited the same Title IX federal civil rights law that prohibits sex-based discrimination to bolster their arguments.

"Ultimately, this is (an Idaho) law that harms all women and girls," said Chase Strangio, an attorney with the American Civil Liberties Union, which is seeking to stop the Idaho law from taking effect.

The state's law prohibits transgender students who identify as female from playing on female teams sponsored by public schools, colleges and universities.

It does not apply to men's teams, which prompted one judge to ask whether discrimination existed involving men's teams.

"They're not barred," said Judge Andrew Kleinfeld. "Anybody can play on the boys' team whether they're transgender or not."

The American Civil Liberties Union and Legal Voice women's rights group sued last year over the Idaho law on behalf of Hecox and an unnamed Boise area high school student who is cisgender. Cisgender refers to someone whose gender identity corresponds with the sex the person was identified as having at birth.

Specifically, the lawsuit contends the law violates the 14th Amendment's Equal Protection Clause because it is discriminatory and the Fourth Amendment's protections against invasion of privacy because of tests required should an athlete's gender be challenged.

A federal judge in Idaho temporarily blocked the law from taking effect last year. Idaho and the conservative Christian group that intervened, Alliance Defending Freedom, appealed.

The group is representing Madison Kenyon of Johnston, Colorado, and Mary Marshall of Twin Falls, Idaho, who run track and cross-country on scholarships at Idaho State University and are concerned they could have to unfairly compete against transgender athletes.

The appeals court didn't indicate when it might issue a ruling.