On Monday, a U.S. appeals court gave little guidance on how it could rule on the constitutionality of the country’s first law banning transgender women and girls from playing on women’s sports teams.
The three-judge panel of the 9th US Circuit Court of Appeals heard virtual arguments in the case that could have far-reaching consequences as more states follow the Idaho conservative’s lead.
Idaho passed its law last year, and more than 20 states have considered such proposals this year. Bans have been passed in Alabama, Arkansas, Mississippi, Tennessee and West Virginia. Florida lawmakers passed a bill and the governor of South Dakota issued an executive order.
On Monday, judges focused at one point on whether the case was still relevant because one of the plaintiffs, Lindsay Hecox, had dropped out of Boise State University after failing to qualify for the female cross country team. His lawyer said Hecox was taking time off and planning to come back in the fall and try again for the team.
The judges also questioned whether the other plaintiff, who feared invasive tests to prove her gender which are described in the law, had standing to bring a lawsuit because she is not transgender and her gender identity is not has not been contested.
The court may decide that the case is no longer relevant and dismiss it without ruling on the merits.
Roger Brooks, an attorney for a conservative Christian group defending Idaho’s law, said he hoped that didn’t happen as the case needed a final decision.
“It is a situation which is alive and which will continue,” he declared at a press conference after the arguments.
Proponents say such laws are necessary because transgender female athletes have physical advantages, although researchers who have studied the issue say any potential benefit is not a reason for banning trans girls from competing.
Idaho lawmakers also argued that allowing transgender athletes on women’s and women’s teams would undo nearly 50 years of progress women have made since 1972 federal legislation credited with opening up the sport. female athletes.
But those who oppose the ban have cited the same Title IX of the Federal Civil Rights Act which prohibits discrimination based on sex.
“In the end, it’s [an Idaho] a law that harms all women and girls, ”said Chase Strangio, an attorney for the American Civil Liberties Union, who seeks to prevent the law from coming into force.
The law prohibits transgender students who identify as women from playing on women’s teams sponsored by public schools, colleges and universities. It does not apply to men’s teams, which prompted a judge to question whether there was discrimination.
“They are not prohibited,” said Judge Andrew Kleinfeld. “Anyone can play on the boys’ team, whether they are transgender or not.”
But Strangio said the U.S. District Court for the District of Idaho had concluded that “it is not possible to force a trans girl to compete on a boys’ team,” attributing expert testimony from Dr Jack Turban, researcher in child and adolescent psychiatry at Stanford. University and testimony of Hecox.
Forcing Hecox to compete in a boys’ team “would hurt his medical treatment” and “be so humiliating” that it’s not an option, Strangio said. After a clarifying question from Kleinfeld, he added: “We have a doctor’s opinion that says … people who have a female gender identity who suppress their testosterone levels are not able to compete in any competition. boys teams. “
Kleinfeld replied, “Well wait, not able just means they’re more likely to lose, does it? It doesn’t mean they’re not allowed.”
But Strangio said the issue isn’t that transgender girls could lose when forced to play with boys.
“Under the terms of the law they’re technically allowed, but it’s not that they’re more likely to lose, it’s that it would significantly disrupt who they are,” Strangio said. “It would violate the core of their being.”
He added that it is a “fundamentally different proposition” to force a trans girl who lives all aspects of her life as a girl to play on a boys’ team rather than forcing a boy, who lives and is celebrated as a boy. , to compete in a team of boys.
The ACLU and Legal Voice, a women’s rights group, filed a lawsuit last year on behalf of Hecox and an unnamed high school student from the Boise area who is cisgender.
The lawsuit contends that the Idaho law violates the 14th Amendment equal-protection clause because it is discriminatory and the Fourth Amendment protections against invasion of privacy because of tests that would be necessary if the an athlete’s sex was contested.
An Idaho federal judge temporarily blocked the law from coming into force last year. Idaho and the conservative Christian group that intervened, Alliance Defending Freedom, appealed.
The ADF represents Madison Kenyon of Johnston, Colo. And Mary Marshall of Twin Falls, Idaho, who run track and cross country thanks to scholarships to Idaho State University and fear they will face athletes unfairly. transgender.
The appeals court did not say when it could make a decision.
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