Transgender law reaches appeals court

Defenders of Idaho’s law banning transgender females from girls’ and women’s sports teams, the first law of its kind in the nation, told a federal appeals court Monday that the state is not discriminating based on transgender status but is simply guaranteeing fair treatment for athletes who were born female.

“Idaho’s law does not classify at all based on gender identity or transgender status,” W. Scott Zanzig, a deputy state attorney general, told a panel of the Ninth U.S. Circuit Court of Appeals. “This is not animus here. This is just a tough policy choice.”

“It’s reasonable and constitutional to exclude biological males with female gender identity from female competition,” said attorney Roger Brooks, defending the law on behalf of two women on Idaho State University’s track team.

That was contrary to the view of U.S. District Judge David Nye, who blocked the law from taking effect last August and said it “discriminates on the basis of transgender status.”

Invoking Nye’s ruling, American Civil Liberties Union attorney Chase Strangio told the court, “The entire purpose of the law (was) to exclude trans women and girls, and only trans women and girls, from sports altogether.”

The threejudge panel, the first in any appellate court to review the issue, gave few indications of its intentions during the hearing, conducted remotely from a courtroom in Los Angeles. The panel will rule at a later date, but the issue could be headed for the Supreme Court.

Since Gov. Brad Little signed the Idaho law in March 2020, four other states have enacted similar legislation, and Gov. Kristi Noem of South Dakota signed an executive order with the same effect. Fourteen states signed legal arguments supporting the Idaho law, while California, 20 other states and the District of Columbia signed arguments opposing it.

The case comes after a 63 ruling by the Supreme Court last June saying the federal law against sex discrimination in employment protects LGBTQ employees and job applicants. The ruling did not apply directly to school sports but made it clear that “sex” in the law also applies to sexual orientation and gender identity.

Nye, an appointee of former President Donald Trump, cited policies by the NCAA, the International Olympic Committee and regulatory bodies for high school sports requiring transgender females to undergo a year of hormone treatment to lower their testosterone levels before joining a girls’ or women’s team. Since the NCAA adopted its policy in 2011, he said, there have been no reports of any disruptions in women’s collegiate sports caused by transgender participants.

Brooks told the appeals court the policy was meaningless. The NCAA takes athletes’ word that they have undergone hormone treatment without conducting any tests, he said, and there has been no evidence that “applying the NCAA’s policy achieves female levels” of testosterone.

Judge Andrew Kleinfeld, the panel member with the most conservative record, offered a similar perspective. Even if 20yearold transgender athlete has taken hormones for a year, he said — noticeably using the male pronoun — “he’s had 19 years building a bigger body . ... There are bells you can’t unring while going through male puberty.”

But Judge Kim Wardlaw told Brooks she sees the evidence differently, without elaborating. The third panel member, Ronald Gould, said little during the hearing.