A flurry of filings: Opponents urge federal court to strike down Idaho’s transgender athletics ban

From across the nation — and from a wide variety of viewpoints — opponents urged a federal court to strike down Idaho’s ban on transgender athletes.

On Monday, attorneys filed 10 separate briefs opposing Idaho’s first-in-the-nation transgender athletics law, now before the 9th U.S. Circuit Court of Appeals.

The one-day flurry of filings — known in legal lexicon as “amicus curiae” or “friend of the court” briefs — ramps up the simmering national debate over the Idaho law. Dubbed the Fairness in Women’s Sports Act by its supporters, Idaho’s law would prohibit transgender women and girls from playing in women’s and girls’ sports.

The law has been tied up in courts since April, only days after Gov. Brad Little signed it into law. Idaho Chief U.S. District Judge David C. Nye issued an injunction against the law in August, prompting supporters to appeal to the Circuit Court.

Which brings us to Monday’s developments.

Opponents aligned behind a central, recurring argument: The law is unconstitutional and fundamentally unfair, since it discriminates against transgender athletes. But opponents also came at the debate from their own vantage points, making Monday’s filings noteworthy in scope:

  • Three former Idaho attorneys general — Republicans Jim Jones and Wayne Kidwell  and Democrat Tony Park — noted that current Attorney General Lawrence Wasden will be saddled with defending a law he believes is unconstitutional. “In addition to creating more divisiveness in the state at a time when political polarization is at a historic high, such legislation imposes real costs on Idaho taxpayers.”
  • Democratic attorneys general from 21 states and the District of Columbia pointed out that 22 states, the District of Columbia, and 225 local jurisdictions have anti-discrimination laws protecting transgender people. “As the experience of these jurisdictions shows, policies ensuring equal treatment of transgender people — including policies permitting young people to participate in the single-sex sports teams consistent with their gender identity — promote safe and inclusive communities, workplaces, and schools: a benefit to all.” (In November, 14 Republican attorneys general filed their own brief supporting Idaho’s law.)
  • Seven businesses — including Nike; tobacco manufacturing giant the Altria Group; and ice cream manufacturer Ben and Jerry’s — said their corporate policies can only do so much to protect their millions of employees from discrimination. “Employees can be negatively impacted by discrimination in any area of their lives, including barriers that may be faced by their children and loved ones.”
  • A group of 176 women athletes — including tennis champion Billie Jean King and U.S. soccer star Megan Rapinoe — urged the court to uphold the “fundamental principle” that anyone can participate in sports. “(We) believe that every young person, and especially youth who are transgender, or intersex, should be able to participate fully in sport alongside their peers and gain the benefits that sports participation brings.” (King and Rapinoe are among hundreds of athletes who have urged the NCAA to pull major sports events from Idaho; the NCAA has not acted on this letter, written in June.)
  • In a brief punctuated by personal accounts of discrimination, a group of transgender athletes challenged the assumption that they have a physical advantage on the playing field. “(Transgender athletes) struggle and fight just the same as their cisgender peers do in their quest to better themselves and their teams — because they want to and because they love their sport.”
  • Coaches, teammates and allies of transgender athletes said Idaho’s law hurts all participants, regardless of gender identity, since they are “denied the ability to benefit from a diversity of experiences and perspectives (athletic and non-athletic alike).”
  • The American Medical Association, the American Academy of Pediatrics and 11 other health care organizations said Idaho’s law undermines the accepted scientific approach for treating gender dysphoria. “Experiencing discrimination in a fundamental aspect of childhood, adolescence and young adulthood — participation in school sports – makes it very difficult, if not impossible, for transgender female athletes to live in full accordance with their gender equity.”
  • Two nonprofit advocacy groups — GLBTQ Legal Advocates and Defenders and the National Center for Lesbian Rights — pointed out that the Legislature remained in session during the start of a global pandemic, passing two laws targeting transgender Idahoans. That “striking” behavior suggests lawmakers were driven by “animus rather than a legitimate governmental interest.”
  • A Sudbury, Mass.-based group, interACT: Advocates for Intersex Youth, said about 2 percent of babies are born with physical intersex variations, meaning Idaho’s law could affect thousands of intersex children in the state. “Their dignity and humanity must not be overlooked.”
  • Groups including the National Women’s Law Center of Washington, D.C., said Idaho’s law opens the door to racial discrimination. “Gender testing has long been used to police Black and brown female athletes’ bodies.”

It’s unclear, of course, how much sway any of the “friend of the court” briefs will have over the court. But the filings underscore the national significance of a measure that helped define the 2020 Idaho legislative session. All told, 18 groups have now filed “friend of the court” briefs in this appeal.

While Monday’s filings came only from opponents, other parties support Idaho’s law. That includes the GOP attorneys general, and the federal government, which also filed a brief on Nov. 19. That filing — on behalf of the federal Justice and Education departments, and Idaho’s U.S. attorney’s office — says the U.S. Consititution’s Equal Protection Clause allows states to “recognize the innate physiological differences between the biological sexes in athletics.”

Kevin Richert

Kevin Richert

Senior reporter and blogger Kevin Richert specializes in education politics and education policy. He has more than 30 years of experience in Idaho journalism. He is a frequent guest on "Idaho Reports" on Idaho Public Television and "Idaho Matters" on Boise State Public Radio. Follow Kevin on Twitter: @KevinRichert. He can be reached at [email protected]

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