By: Declan Andersen
In March 2020, the Governor of Idaho signed into law a bill (“HB 500”) that acts as a ban for transgender women and girls from competition with cisgender women and girls.[1] Barbara Ehardt, the Idaho State Representative who sponsored the bill, stated that the legislation aimed to protect the competitive balance of women’s sports.[2] Lindsay Hecox, a Boise State University student, brought a lawsuit in federal district court, claiming HB 500 is unconstitutional and that it violates Title IX.[3] As part of her suit, Hecox filed a motion for a preliminary injunction, that was granted in August 2020.[4]
For some background, the National Collegiate Athletic Association (“NCAA”) first published guidelines that addressed the ability of transgender student-athletes to participate in their respective sport.[5] As part of these guidelines, transgender men may participate in men’s teams regardless of their choice to take testosterone.[6] In contrast, transgender women are required to complete at least a year of hormone therapy.[7] To compare, the International Olympic Committee (“IOC”) mandates a certain level of testosterone level to be maintained by transgender female athletes for at least a year to be eligible to compete.[8] HB 500 is much stricter than the NCAA or IOC guidelines because it bans transgender women and girls from competing in female athletic events entirely.
In Hecox v. Little[9], Hecox challenged HB 500 on grounds that it violated Title IX and the United States Constitution.[10] In terms of her constitutional claim, Hecox contends that HB 500 violates the equal protection (“EP”) clause, as it “discriminates based on transgender status by categorically barring transgender women from participating in women’s sports ”[11] The first issue the district court determined was the appropriate level of scrutiny to determine whether HB 500 violates the EP clause.[12] The district court decided to apply the heightened scrutiny standard, as the parties focused their arguments around that standard and the Court also found that transgender individuals qualify as a “quasi-suspect” class.[13] The competing interests at play are the equal treatment of transgender women and their cisgender counterparts as each relate to athletic involvement and the validity of excluding cisgender males from participating on female teams.[14]
In support of its position, the defendant took the untenable position that HB 500 “does not discriminate on the basis of transgender status or sex” because it merely treats “all biological males the same.”[15] In response, the Court outlined three justifications for the lawful exclusion of cisgender boys from competing on female sports teams: “(1) women had historically been deprived of athletic opportunities in favor of men; (2) as a general matter, men had equal athletic opportunity to women and (3) . . . males would displace females to a substantial extent if permitted to play.”[16]The Court eventually determined that neither of those justifications holds true within the context of transgender athletes.[17] It is important to note the district court only considered the request for temporary, preliminary injunction; the suit has yet to be decided on the merits. Looking prospectively, the main obstacle facing plaintiffs’ challenge is that transgender status, nor the right to participate in interscholastic sport, warrants the application of strict scrutiny.[18] While not as permissive as rational basis review, heightened scrutiny does not offer the same level of certainty of Hecox’s suit as strict scrutiny. In short, to withstand strict scrutiny, the classification must be “substantially tailored to serve a compelling state interest,” while a classification need only be “substantially related to a legitimate state interest” to withstand heightened scrutiny.[19]
The NCAA, which is in essence the governing body of collegiate athletics, is almost solely reliant upon revenuegenerated television and marketing rights.[20] The lion share of which comes from its “March Madness” basketball tournament, which generates close to a billion dollars annually.[21] The majority of that advertising revenue came from commercials that aired during the tournament’s TV coverage, the pricing of which is determined by the size of the TV audience. To describe the impact of the relationship between social protests and TV viewing numbers, the NFL experienced an eleven percent decrease in ratings the weeks following its decision to discipline Colin Kaepernick for his protest of the national anthem.[22] To complicate matters further, HB 500 contains a civil enforcement provision that would expose NCAA institutions operating within Idaho to civil liability for failing to comply.[23] With similar laws to Idaho’s HB 500 currently being contemplated by other state legislatures, the NCAA may need to brace for an unintended impact to their bottom line.
[1] See Fred Davis, Governor Signs Controversial HB 500 Into Law, Bingham Cty. Chronicle (Mar. 31, 2020) https://www.postregister.com/chronicle/sports/governor-signs-controversial-hb-500-into-law/article_357c532c-b356-5f40-8b11-5d5b59a66bf3.html.
[2] See id.
[3] See Complaint at 43–46, 50–52, Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020) (No. 1:20-cv-00184-CWD); see also Roman Stubbs, As Transgender Rights Debate Spills into Sports, One Runner Finds Herself at the Center of a Pivotal Case, The Wash. Post (July 27, 2020, 6:00 AM) https://www.washingtonpost.com/sports/2020/07/27/idaho-transgender-sports-lawsuit-hecox-v-little-hb-500/.
[4] See Hecox v. Little, 479 F. Supp. 3d 930, 989 (D. Idaho 2020); see also ACLU, Judge Blocks First Law Targeting Transgender Athletes as Case Continues, ACLU (Aug. 17, 2020) https://www.aclu.org/press-releases/judge-blocks-first-law-targeting-transgender-athletes-case-continues.
[5] See Maggie Ryan, The NCAA Trans Athlete Policy Was Groundbreaking in 2011 – But in 2020, More Must Be Done, POPSUGAR (updated July 1, 2020), https://www.popsugar.com/fitness/how-ncaa-policy-for-transgender-athletes-can-evolve-47583204.
[6] Id.
[7] See id.
[8] See Sean Ingle, IOC Delays New Transgender Guidelines After Scientists Fail to Agree, The Guardian (Sept. 24, 2019) https://www.theguardian.com/sport/2019/sep/24/ioc-delays-new-transgender-guidelines-2020-olympics (stating that the IOC is currently in the process of considering changing its current guidelines).
[9] 479 F. Supp. 3d 930 (D. Idaho 2020).
[10] See id. at 944–45.
[11] Id.
[12] See id. at 974.
[13] See id. at 975 (stating that “quasi-suspect” classifications trigger heightened scrutiny).
[14] See id. at 977.
[15] See id. at 974 (internal quotations omitted).
[16] See id. at 976 (internal quotations omitted).
[17] See id. at 976–79.
[18] See id. at 973.
[19] See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440–41 (1985) (internal quotations omitted).
[20] See Zach Osterman, Indianapolis’ ‘Once-in-a-Lifetime’ March Madness Will Go On – Because for NCAA, It Has To, Indianapolis Star (Jan. 17, 2021, 6:01 AM), https://www.indystar.com/story/sports/college/2021/01/17/march-madness-2021-finances-ncaa-tournament-indianapolis-money-indiana/4136457001/.
[21] See Rachel Gursky, March Madness Generates Nearly $1 Billion in Ad Revenue, Kantar (Feb. 27, 2020), https://www.kantarmedia.com/us/thinking-and-resources/blog/march-madness-generates-nearly-1-billion-in-ad-revenue;see also Osterman, supra note 20 at 4.
[22] See Kelley D. Evans, NFL Viewership Down and Study Suggests it’s Over Protests, The Undefeated (Oct. 11, 2016), https://theundefeated.com/features/nfl-viewership-down-and-study-suggests-its-over-protests/.
[23] See Hecox, 479 F. Supp. 3d at 961.
