A California appeals court on Monday weighed tossing a case in which Idaho officials are attempting to resurrect a ban on transgender participation in public school women’s sports.
The ban, passed by the Idaho state Legislature and signed by Gov. Brad Little, was originally shut down last year by a federal district court, which found that the state could not ban people based on their biological sex. The state and the Alliance Defending Freedom, the legal nonprofit group representing two of the women in the case, appealed to the U.S. 9th Circuit Court of Appeals.
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But during a hearing on Monday, Judge Andrew Kleinfeld, one of the three judges handling the case, said that there is a real possibility that the court will declare it moot. Since the district court’s decision, Lindsay Hecox, the transgender athlete in the case, did not make the track team this year and dropped out of college. Since Hecox no longer can compete against Madison Kenyon and Mary Marshall, the two biologically female athletes in the case, Kleinfeld said it might be moot.
“What case is left for us to decide?” he asked an attorney at the American Civil Liberties Union.
Roger Brooks, a senior counsel at the ADF, said that he is concerned by the possibility the case will be dismissed.
“We’re hopeful that the appeals court will not consider this dispute to be moot,” he said after arguing the case. “We think it is ripe to be resolved and important to be resolved.”
In April, a federal district court in Connecticut dismissed a similar case because the two transgender athletes had graduated from high school and could no longer compete against the biological women involved. Attorneys at the ADF said after that decision, they plan to appeal it.
The Idaho Fairness in Women’s Sports Act was the first in a series of red-state proposals aimed at curbing transgender participation in women’s sports. Transgender issues have increasingly become a litmus test among social conservatives. Earlier this year, many conservatives reacted strongly when South Dakota Gov. Kristi Noem backed off signing a bill markedly similar to the Idaho one.
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After the Monday arguments, Brooks said unless these bills are upheld, the future of women’s sports is precarious.
“If the ACLU gets its way, women’s sports will no longer exist,” he said. “There will be men’s sports, and there will be effectively co-ed sports.”
