Lawyers fighting over Idaho’s trans ban have their day in court

National Youth Sports Day 2020 shared the stage with the first legal salvos in the case of Hecox v. Little. Gov. Brad Little’s mandated ban on transgender female interscholastic and intercollegiate athletics was the subject of a three-hour hearing in U.S. District Court in Boise, Idaho, Wednesday. The law took effect July 1.

The bulk of the discussion centered around a motion by lawyers seeking to dismiss the suit, and another motion by the plaintiff’s lawyers for an injunction against enforcement of the law. The attorneys representing the state of Idaho are working with the Alliance Defending Freedom — a Christian law firm labeled an extremist hate group by the Southern Poverty Law Center. They cited both legal precedent and federal support for the law as reasons to dismiss the lawsuit. Such federal support includes the actions by the Trump Administration and U.S. Attorney General William Barr and the Dept. of Justice.

The plaintiffs’ lawyers, representing an American Civil Liberties Union-led coalition, are seeking an injunction so that transgender students are not hindered from participating in athletics in the upcoming fall season. Such a decision would allow Boise State University student and plaintiff Lindsey Hecox to compete in cross country for BSU when and if a season starts in September.

The rhetoric was sharp from both sides. Alliance Defending Freedom senior counsel Roger Brooks and Idaho Deputy Attorney General Scott Zanzig directly attacked the concept of HB 500 being a de-facto ban on transgender student athletes. “This is not about any animus against transgender girls or women. If you’re a transgender boy or man you can play anywhere you want,” Zanzig said in his arguments. “This is to maintain fairness in keeping biological males out of sports for biological females.”

An attorney for the plaintiffs, Elizabeth Prelogar, directly challenged those arguments citing that Idaho’s previous regulations at the high school level for transgender athletes already mirrored those of the NCAA. She also spoke out stridently at another facet of the law in her remarks: HB 500 calls for gender verification by a physician, a major contention of a cisgender high school student who is also a plaintiff in the case.

“This law calls for invasive sex verification practices that singles out girls for worse and differential treatment.” Prelogar stated.

Prelogar also directly countered arguments that the law is not a ban. She pointed out the Idaho legislature was debating two other bills which would curtail rights for transgender people in conjunction with HB 500. A second bill, HB 509, was also passed by the legislature alongside HB500 in March. The measure banned any changes on the gender marker of a birth certificate after the first year and faced its own U.S. District Court hearing Wednesday afternoon.

She also cited the recent Title VII decisions in the U.S. Supreme Court that barred employment discrimination against LGBTQ people. “The language between Title VII and Title IX are essentially similar” Prelogar noted. “Both uphold protection on the basis of sex.”

Prelogar also directly responded to a contention by Zanzig, saying that a Lindsay Hecox can still play, but subtly noting their main contentions of the law. “We haven’t said you can’t play anywhere. We haven’t said that transgender people that you aren’t welcome.”

“The idea Lindsay Hecox could just play on the men’s team is damaging, harmful and demeaning” Preloger contended. “The sponsor said the whole reason to have HB 500, the whole reason the Legislature departed from the ordinary rule of sex separation in sports, was to ensure girls who are transgender cannot play.”

The next step in the judiciary process is in the hands of U.S. District Judge David Nye, who said he will decide on the matters of an injunction or dismissal by August 10. On that date, fall sports in Idaho high schools begin preseason practices.

For Hecox, who was intensely watching the proceedings in the courtroom, her focus is as much on the competitions ahead on the running trails of the Mountain West Conference as they are in the courtroom. “It’s tough for us right now, but we are going in the right direction,” Hecox said in an post-hearing webcast Wednesday. “I’m just going to be running still and training because its my passion.”


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