Rep. Barbara Ehardt screenshot

Rep. Barbara Ehardt takes part in a discussion last month at the Idaho Statehouse in Boise.

BOISE — During the 2020 Legislative session, Idaho passed the country’s first law barring transgender athletes from competing on women’s and girls’ sports teams at the high school and college levels. However, Idaho’s transgender sports law, also known as the Fairness in Women’s Sports Act, has yet to be enforced.

In August, the federal court in Idaho made a decision to place a temporary block on the enforcement of the law while it awaited legal proceedings brought forward by the American Civil Liberties Union of Idaho (ACLU) and the progressive feminist group Legal Voices. That decision was appealed to the United States Court of Appeals for the 9th Circuit. On Monday, the 9th Circuit will hold a hearing regarding that appeal to decide whether to overturn or uphold the lower court's decision to prevent enforcement.

The hearing will consist of oral arguments in which each side will get 20 minutes to make their case.

The groups are challenging the the Fairness in Women’s Sports Act through a lawsuit known as Hecox v. Little, which asserts the law is unconstitutional under Title IX. They've challenged its current enforcement partly on the basis that the law's requirement that athletes whose gender is questioned must get a physical examination to prove they are female is invasive.

“During the legislative session, the community expressed alarm about how girls — and only girls, not boys — would be required to submit to sex verification,” Chelsea Gaona-Lincoln, litigation support coordinator for Legal Voice, previously told the Post Register. “It’s important the court prevent such intrusive testing from beginning.”

The plaintiffs in Hecox v. Little are Lindsay Hecox, a transgender woman who attends Boise State University, and an unnamed Boise High School student athlete. The defendants include Gov. Brad Little, Superintendent of Public Instruction Sherri Ybarra, the Boise school district, the state Board of Education and Boise State University.

Rep. Barbara Ehardt, R-Idaho Falls, sponsored Idaho’s law when it first came forward as a bill. She sees the 9th Circuit as “the toughest district, at least when it comes to more conservative values.” But don’t expect matters to be settled next week. No matter what happens in the 9th Circuit, the losing party will likely file an appeal to a higher court.

“When I started to push forward with this, I understood that this was the kind of issue that would make its way up to the Supreme Court,” Ehardt said.

In the intervening year since Idaho became the first to enact such a law, more than 30 states have similar bills moving through their respective legislatures. Some states, such as Montana, based their bills off Idaho’s “Fairness in Women’s Sports Act.” On Wednesday, West Virginia Republican Gov. Jim Justice signed a bill that bans transgender athletes from competing in female sports in middle and high schools and colleges in that state.

“So many of these states have actually used the actual language from my bill. That is gratifying to know that we had really paved a path forward,” Ehardt said.

When it came to the bill’s wording, Ehardt partnered with the Alliance Defending Freedom, a socially conservative legal group who helped craft its language. The group has assisted with anti-transgender bills in other states as well.

Ehardt believes her bill also served to show legislators from other states that this kind of law was possible. At least 30 legislators from other states have sought her advice on how to bring similar bills forward, Ehardt said.

“It helped others understand that, ‘Hey, we can do this too.’ I have had the opportunity to speak to so many fellow legislators from across the country to show them how I had worked to move things forward,” Ehardt said.

Over the past few months, Ehardt has been asked to testify in legislative hearings in many of those states, including Montana, North Dakota, South Dakota, Kansas, North Carolina and Utah.

In both Montana and South Dakota she traveled to the states to testify in person. Her travel expenses were paid for by “pro-family groups.”

Many of those bills are still working their way through their respective legislatures. The court’s decision on Hecox v. Little and any future legal decisions on the case could set the country’s precedent and serve as a road map for how other state’s transgender sports bills play out.

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