Shadow docket again: Idaho petitions U.S. Supreme Court to hear transgender athlete case

The state of Idaho is asking the U.S. Supreme Court to hear a case on whether transgender women and girls should be able to participate in sports that align with their gender identity.

In 2020, the Idaho Legislature became the first to pass a law that banned transgender women and girls from participating in women’s sports. Shortly after Idaho Gov. Brad Little signed the bill into law, Lindsay Hecox, a Boise State University student, sued the state.

Last year, the U.S. Court of Appeals for the 9th Circuit upheld an injunction against the law, which prevented it from taking effect after a district judge found that it was likely unconstitutional.

The appeals court flip-flopped on whether to allow the full scope of the injunction since then, a marked shift that displayed the impact of a high court decision in another case brought, and partially won, by Idaho Attorney General Raúl Labrador: a ban on gender-affirming care for minors in which the Supreme Court admonished lower courts to limit the breadth of their rulings.

In a news release announcing the petition, Labrador said allowing trans women to compete “creates a dangerous, unfair environment for women.”

“Idaho is committed to ensuring that women and girls get a fair shot on and off the field,” he said. “While we’ve been protecting fair and equal athletic competition and opportunities, activists have been pushing a radical social agenda that sidelines women and girls in their own sports.”

The petition says women and girls have fought for decades for an “equal playing field,” but that their spaces are vanishing. Allowing trans women to compete in sports aligning with their gender identity, the petition reads, “destroys fair competition, safety, and women’s athletic opportunities.”

In a statement, the American Civil Liberties Union of Idaho, which brought the lawsuit, said Idaho’s ban “alienates and stigmatizes” trans women and girls.

“It also harms all women and girls, potentially subjecting them to invasive pelvic examinations, just for the ability to participate in female sports,” spokesperson Rebecca De León said in a statement. “The Ninth Circuit was clear that transgender athletes face irreparable harm as a result of this ban that not only targets and discriminates against transgender women and girls, but all women and girls.”

De León said that Labrador is wasting taxpayer resources by appealing to the Supreme Court, and that the effort is “misguided.”

Changed appeals ruling points to effect of prior Labrador win

A narrowed pause on the transgender ban is an example of the rapid effects of a Supreme Court order delivered this spring over a separate Idaho case.

The development also displays the effectiveness to date of Labrador’s legal strategy, wherein he aggressively appeals civil cases that are being litigated to the high court, taking advantage of a conservative supermajority likely to rule in the Republican’s favor.

Last August, a three-judge 9th Circuit panel — a generally more liberal court — upheld a district judge’s ruling that prevented the state’s ban on transgender women in sports from taking effect.

“The scope of the injunction is clear,” the three judges wrote.

Then came a second case, Poe v. Labrador, pitting transgender children seeking gender-affirming care against Idaho’s ban on such treatments. A district judge granted an injunction, preventing the law from taking effect while it moved through the courts. When his appeals to reverse that pause failed before the appeals court, Labrador filed an emergency appeal to the U.S. Supreme Court in February.

Two months later, the court partially sided with Labrador, narrowing the scope of the injunction so that it applied only to the two transgender plaintiffs in the case, rather than to all transgender youths seeking the gender-affirming treatments.

“In recent years, certain district courts across the country have not contented themselves with issuing equitable orders that redress the injuries of the plaintiffs before them, but have sought instead to govern an entire state or even the whole nation from their courtrooms,” wrote Justice Neil Gorsuch, a Donald Trump appointee, in a concurrence.

“Today the court takes a significant step toward addressing the problem ... Lower courts would be wise to take heed.”

Fourteen days later, the 9th Circuit withdrew its ruling upholding the pause on the transgender sports ban “in light of the Supreme Court’s decision in Labrador v. Poe.”

Then in June, the same three judges — Kim McLane Wardlaw, Ronald M. Gould and Morgan Christen — reworked the injunction and made it narrower: The Idaho ban could take effect on all parties except for Hecox, the plaintiff.

“Here, the scope of the injunction is not clear,” the judges wrote, inserting a “not” into an otherwise identical sentence from their earlier opinion. The court sent the case back to district court to further examine the scope of the injunction, and told it to “consider the effect, if any, of the Supreme Court’s decision in Labrador v. Poe.”

The Hecox case marks Labrador’s third appeal to the Supreme Court’s so-called “shadow docket,” wherein the court takes up preliminary matters more rapidly than it does with other cases, which generally have progressed all the way through the lower courts. His efforts have yielded mixed results.

While he succeeded at getting the transgender minor care ban into effect, the justices reversed course in a high-profile abortion case, going back on allowing the state’s abortion ban to take effect in medical emergencies and sending the case back to the 9th Circuit.

But already, before the Supreme Court has said whether it will take up the Hecox case, the state’s legal efforts have had an effect on the rules in sports.

Idaho laws target trans residents

Over the past several years, the Idaho Legislature, along with lawmakers across the country, passed a series of bills targeting transgender youth and adults, several of which are now being litigated.

In addition to barring transgender children from accessing gender-affirming care, Idaho lawmakers prohibited teachers from using pronouns that differ from a students’ sex at birth without parent approval; banned Medicaid and state health insurance funds from being used for gender-affirming care; and barred trans youths from using bathrooms that corresponded with their gender identities.

Last month, a federal judge temporarily blocked a new rule from taking effect that would have barred discrimination based on gender identity and sexual orientation in Idaho schools.

According to the Trevor Project, an organization that advocates for LGBTQ+ rights and conducts a survey on the mental health of young people, trans teens who attended schools with policies supportive of gender transitions have lower rates of attempting suicide.