Photo source: adflegal.org
Alliance Defending Freedom (ADF) is an Arizona based conservative group which advocates for “religious liberty, the sanctity of human life, freedom of speech, and marriage and family.” Earlier this month, ADF filed an appeal to the 9th Circuit challenging a temporary injunction issued by an Idaho District Judge.
The case is Hecox v. Little and in it the plaintiffs challenge the constitutionality of an Idaho law that became effective in March 2020. The law–the Fairness in Women’s Sports Act (the Act)–is the first in the country to place an outright ban on participation of transgender women on women’s sports teams.
In the opinion, Judge Nye recognizes that the issues involved in this case are complex and controversial including: “rights of student athletes, physiological differences between the sexes, an individual’s ability to challenge the gender of other student athletes, female athlete’s rights to medical privacy and to be free from potentially invasive sex identification procedures, and the rights of all students to have complete access to educational opportunities, programs, and activities available at school.”
However, in deciding a motion for preliminary injunction, the court was not required to determine if the law was in fact unconstitutional. What it did have to decide was whether the plaintiffs: 1.) had standing to challenge the law, 2.) stated facial or as-applied constitutional challenges, and 3.) were likely to succeed on their claim that the law violates the Equal Protection Clause of the Fourteenth Amendment.
Judge Nye determined that both plaintiffs had standing, that their as-applied constitutional challenge survived the motion to dismiss, and that they were likely to succeed in establishing the Act is unconstitutional. As such, the court issued a temporary injunction stopping the enforcement of the Act until the case is decided on the merits.
The case is now on the way to the 9th Circuit Court of Appeals with the aid of ADF attorneys. The arguments made by ADF at the Court of Appeals are likely going to mirror those laid out in the Department of Justice’s statement of interest supporting the Act. In the statement, Attorney General Barr argues that “[a]llowing biological males to compete in all-female sports is fundamentally unfair to female athletes” and “[t]his limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”
We will have to wait and see which arguments the 9th Circuit finds persuasive. And if this case reaches the Supreme Court, the outcome is likely going to depend on which party chooses Justice Ginsburg’s replacement.