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Civil rights groups seek to overturn new Idaho laws

Lawyers for the state of Idaho were in federal court Wednesday defending two new laws that, opponents say, discriminate against transgender people.

Wednesday morning, lawyers for both sides appeared before Chief U.S. District Judge David Nye to defend House Bill 500, or the Fairness in Women’s Sports Act, which bars transgender girls and women from playing on female high school and college sports teams. That afternoon, U.S. Magistrate Judge Candy Dale heard arguments on House Bill 509, or the Idaho Vital Statistics Act, which sets limited criteria to amend a birth certificate and requires a court order to do so, effectively barring transgender people from changing their sex on their birth certificates to match their gender identities under most circumstances.

The American Civil Liberties Union of Idaho and Legal Voice are suing to overturn House Bill 500. Nye heard arguments Wednesday on whether the court should issue a preliminary injunction blocking the law’s enforcement; whether to dismiss their lawsuit; and whether to let two Idaho State University cross country and track runners who support the bill join the case. Those two athletes are being represented by the Alliance Defending Freedom, a socially conservative group that helped to craft the bill and is also representing the plaintiffs in a Connecticut lawsuit over transgender high school athletics. Nye said he would rule before Aug. 10 so the parties will know whether there is an injunction before fall sports tryouts start.

“HB 500 is a policy that is in effect in the state of Idaho,” said Elizabeth Prelogar with Cooley LLP, arguing for an injunction. “It hangs over the head of every woman and girl athlete in the state who knows that at anytime, someone could come in and challenge her sex.”

The plaintiffs are Lindsay Hecox, who is a transgender woman who goes to Boise State University, and an anonymous female Boise High School student who is cisgender and says she could be harmed by the provisions requiring female athletes to prove their sex if someone challenges it. Prelogar said the bill “creates a new categorical exclusion of girls that are transgender” and singles out girls “for worse and differential treatment” with the sex verification provisions.

To its supporters, including the state and the U.S. Department of Justice, House Bill 500 is about protecting female athletes from unfair competition from people who were born male.

“The issue really is, does the Constitution require that a state gives special protection to transgender girls if it wants to make rules based on biological differences to protect opportunities for biological females in sports?” said Deputy Attorney General Scott Zanzig. “The United States government agrees with us that the Constitution does not require that.”

The arguments covered a wide range of ground, as the lawyers went back and forth on topics such as the science of how testosterone and hormone suppressing drugs affect athletic performance.

“This isn’t about some nasty animus against transgender girls and women,” Zanzig said. “What it is, is a decision the Legislature made and had the authority to make without violating the Constitution that they were drawing the line at biology.”

At one point, Zanzig said Hecox would be able to play on a female BSU sports team if her doctor were to certify she is female. Prelogar said her clients would likely agree to a consent decree stipulating the state would interpret the law that way, but she called that view of it “hard to square with the text of the statute and what we know about the Legislature’s intent.”

Debate over transgender issues dominated much of the 2020 legislative session. Both bills passed with almost unanimous Republican support and unanimous Democratic opposition, after often emotional public hearings and amid protests from civil rights groups and members of the transgender community.

“If you back up for a minute and look at what was happening in the Legislature, what the purpose of the law is ... this is a bill that targets and discriminates on the basis of transgender status,” Prelogar said.

House Bill 509 was passed in reaction to an injunction Dale imposed in 2018 directing the state to let transgender people amend their birth certificates. Lambda Legal, the group that won the 2018 injunction, wants Dale to hold it applies to the new law as well. Nora Huppert, a lawyer with Lambda, said 509 is “the functional equivalent of a categorical ban” on transgender people changing their birth certificates.

“Requiring transgender people to go on a wild goose chase in state court before receiving clarification would impose severe hardship,” she said.

Deputy Attorney General Steve Olsen said extending the injunction would be the equivalent of ruling House Bill 509 unconstitutional without hearing arguments on its merits.

“The court needs to decide whether the Legislature, in identifying sex as biological in a birth certificate, is allowed to do that, given the legislative findings within the statute,” he said. “It hasn’t done that.”

Dale said she plans to rule soon.

Reporter Nathan Brown can be reached at 208-542-6757. Follow him on Twitter: @NateBrownNews.