Idaho Only State To Bar Transgender Athletes From Women’s Student Athletics. Judge Just Ruled To Block That Law.

On Monday, a judge appointed to Idaho’s federal bench by President Trump issued an injunction to block the state’s “Fairness in Women’s Sports Act,” which had blocked men claiming they are women from competing in women’s student athletics. On March 30, 2020, Idaho Governor Bradley Little had signed the Fairness in Women’s Sports Act into law.

Judge David C. Nye wrote:

The primary question before the Court—whether the Court should enjoin the State of Idaho from enforcing a newly enacted law which precludes transgender female athletes from participating on women’s sports—involves complex issues relating to the 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 …

Despite the national focus on the issue, Idaho is the first and only state to categorically bar the participation of transgender women in women’s student athletics. This categorical bar to girls and women who are transgender stands in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally—including the National Collegiate Athletic Association (“NCAA”) and the International Olympic Committee (“IOC”)—which allow transgender women to participate on female sports teams once certain specific criteria are met.

“Nye said that plaintiffs, who include track and field athletes at Boise State University, ‘are likely to succeed in establishing the Act is unconstitutional as currently written’ because, in his estimation, it likely violates the Equal Protection and Due Process clauses of the 14th Amendment,” Daniel Horowitz of Conservative Review noted.

Horowitz added:

Nye claimed that Idaho’s ban is “in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally” and that separating sexes by scientific designation “burdens all female athletes with the risk and embarrassment of having to ‘verify’ their ‘biological sex’ in order to play women’s sports.”ia

Horowitz referenced Supreme Court Justice Neil Gorsuch’s opinion in Bostock v Clayton County, Ga, saying that the“Idaho judge cited Gorsuch’s Bostock decision as part of his rationale for believing transgenderism is enshrined in the 14th Amendment.”

Nye cited the fact that the state had passed the Fairness in Women’s Sports Act after COVID-19 was declared a pandemic was evidence that the legislation was trying to ban transgender athletes rather than an effort to protect women’s sports, writing:

In addition, it is difficult to ignore the circumstances under which the Act was passed. As COVID-19 was declared a pandemic and many states adjourned state legislative session indefinitely, the Idaho Legislature stayed in session to pass H.B. 500 and become the first and only state to bar all women and girls who are transgender from participating in school sports. At the same time, the Legislature also passed another bill, H.B. 509, which essentially bans transgender individuals from changing their gender marker on their birth certificates to match their gender identity. Governor Little signed H.B. 500 and H.B. 509 into law on the same day. That the Idaho government stayed in session amidst an unprecedented national shut down to pass two laws which dramatically limit the rights of transgender individuals suggests the Act was motivated by a desire for transgender exclusion, rather than equality for women athletes, particularly when the national shutdown preempted school athletic events, making the rush to the pass the law unnecessary.

Nye wrote, “The State has not identified a legitimate interest served by the Act that the preexisting rules in Idaho did not already address, other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics.”