9th Circuit Court of Appeals Upholds Injunction on Law Preventing Transgender Participation in Sports

October 26, 2023

Important Takeaways: The 9th Circuit Court of Appeals agreed with the District Court for the District of Idaho in maintaining and injunction on an Idaho law that prevented transgender females from participating in public school sports.

Facts: Idaho passed a bill in March 2020 that barred all transgender women and girls form participating in public school female sports. The bill was called the “Fairness in Women’s Sports Act.” The bill also provided a sex dispute verification process that allowed any individual to dispute the sex of a female student athlete and require her to undergo medical procedures to verify her sex. Male student athletes were not subject to the same dispute process under the bill. The Act also established a private cause of action for any student who was deprived of an athletic opportunity or suffered any direct or indirect harm as a result of a violation of the act, allowing individuals to bring lawsuits under the Act.

In August 2020, the United States District Court for the District of Idaho issued a preliminary injunction that enjoined the Act because it violated the Equal Protection Clause of the Fourteenth Amendment. The act only subjects women and girls to the an intrusive sex verification process and categorically bans transgender girls and women form competing. The State of Idaho also failed to show evidence demonstrating the Act is substantially related to its claimed interests in sex equality and opportunity for women athletes.

A preliminary injunction should be granted where the party seeking the injunction is likely to succeed on the merits of the claim, and irreparable harm will take place if the action is not stopped. The court also balances the interest of the parties and the public interest.

The 9th Circuit Court of Appeals held that heightened scrutiny applied to the Act because discrimination based on transgender status is sex-based discrimination and because the Act only discriminated against female athletes and not male athletes. All female athletes could be subject to the sex verification process, but male students could not be. Heightened scrutiny means that the law must be substantially related to further an important government interest.

The 9^th Circuit further held that neither the categorical ban nor sex dispute verification pass heightened scrutiny. The categorical ban on transgender female athletes does not pass heightened scrutiny because the Act does not further the alleged goal of furthering athletic opportunities for Idaho’s female students. The State of Idaho did not present any evidence that transgender female athletes had been given more opportunities than other female athletes. The Court explained that there was a lack of a means-end fit that demonstrated the Act does not survive heighted scrutiny.

The sex verification process also does not pass heightened scrutiny. The process is unconscionably invasive, with the potential to traumatize young girls and women. The Court held that the State of Idaho had not offered any exceedingly persuasive justification for the imposition of this process. The claims are likely to succeed on the merits.

The Court also held that the transgender student who brought this claim would suffer irreparable harm if the injunction was lifted because she would not be able to participate in sports.

The balance of interests also weighs in favor of the injunction because the injunction keeps the status quo, as transgender athletes were not previously barred from participation in sports. The student would have a much greater harm in not being able to participate in sports.

The court declined to decide if any restriction on transgender participation in sports violates equal protection because heightened scrutiny is a fact specific test, but the preliminary injunction against Idaho’s Act was affirmed.

What this means: Laws that discriminate based on transgender status must pass heightened scrutiny. The Court declined to say if all laws that limit transgender participation in sports or activates are unconstitutional, but challenges on this type of law will continue to be judged under heightened scrutiny. This means states will have the burden of showing these laws are substantially related to an important government interest.

Read the case here: Idaho State Board of Education v. Kenyon, 9^th Circuit Court of Appeals, August 17, 2023. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.