Sports. We follow them, watch them, and, above all, we talk about them. We shout at the screen during an intense play and cheer among the crowd as our team scores. We talked about Kaepernick taking a knee and Lance Armstrong doping.
But recently, one sports topic has been dominating the conversation: transgender participation.
Transgender Participation in Sports
The law is pretty clear when it comes to locker room use. Transgender youth are permitted to use whichever locker room that conforms with their gender identity.
But what about when transgender youth want to actually play a sport? Do they play on a team that conforms with their gender assigned at birth? Or, do they play on a team that conforms with their gender identity?
Well, the courts have begun to answer these pressing questions.
Idaho’s Fairness in Women’s Sports Act
In March of 2020, Idaho signed into law the Fairness in Women’s Sports Act which officially banned transgender women from participating in sports teams that correspond to their gender identity. Naturally, some students took issue. Lindsay Hecox sued the state of Idaho with a Jane Doe to challenge the law.
Hecox v. Little
In Hecox v. Little, the state filed a motion to dismiss in August of 2020. The state argued that the court lacked jurisdiction to review the matter, and that Hecox failed to present sufficient evidence of any legal violation. In response, the court denied the motion on both grounds. The court went a step further and also issued an injunction preventing the Idaho’s law from going into effect.
The court stated that the state failed to identify a legitimate interest served by the legislation. Without any legitimate interest served by the law, the law would fail to meet one of its constitutional requirements. Not surprisingly, the court reasoned that Hecox is likely to prevail on her equal protection claim and provided four justifications summarized below:
- Transgender women have historically been discriminated against and disfavored.
A study conducted by TransEquality found that 86% of transgender youth experience harassment, 48% experience homelessness, and 25% live in poverty. Idaho’s law unconstitutionally furthers discrimination of transgender athletes by subjecting them to invasive sex disputes.
- Under the act, transgender women would be barred from participating in any school sport.
The Idaho law prohibits transgender women from participating in both women’s and men’s sports, preventing transgender women from “equal athletic opportunities.” The court reasoned that forcing transgender women to participate in sports that do not correspond with their gender identity is “equivalent to gender identity conversion.” Gender identity conversion has been deemed dangerous and unethical by every major medical association.
- Transgender women cannot “displace” cisgender women in athletics.
While the ratio of males to females is one to one, less than 1% of the population is transgender. Therefore, the court reasoned that transgender women “have not and could not displace” cisgender women in athletics, as the state alleges.
- Transgender women do not have a significant advantage over cisgender women after testosterone suppression.
The court addressed the physical differences between men and women generally. However, the court reasoned that there is insufficient evident to support a finding that transgender women who suppress their testosterone have a significant advantage over cisgender women.
Where are we heading?
The state appealed the preliminary injunction and the issue went before the 9th US Circuit Court of Appeals. While the appellate court has yet to render its decision in Hecox v. Little, the outcome is likely to be in favor of Hecox and Doe. Unfortunately, the outlook isn’t resoundingly positive for transgender athletes. The Trump administration previously filed a brief in support of the state’s argument in Hecox v. Little. Subsequently, the Biden administration withdrew that brief. However, when legal counsel for both the state and Hecox presented oral arguments in May of 2021, the Biden administration remained silent on the matter. So, it is still unclear whether the current administration fully supports Hecox’s position. Moreover, across the country, 33 states are set to pass legislation banning transgender participation in sports in 2021. So, despite Hecox v. Little providing a glimmer of hope for transgender athletes, many similar lawsuits are looming across the nation.
Sports are woven into the fabric, or should I say jersey, of American society. Naturally, transgender athletes have become a part of the spirited dialogue surrounding sports in the last few years. Hopefully, we can soon talk less about resistance toward integrating transgender athletes into our current athletic systems and begin to use our words to advocate for transgender athletes’ right to equal athletic opportunity.
Lilian Winters is a student at Loyola University Chicago School of Law and wrote this blog as part of the Education Law Practicum.
