Broad support filed with 9th Circuit for protecting girls’ sports

Video clips:  Christiana Holcomb | Madison Kenyon | Mary Kate Marshall
B-roll:   Madison Kenyon | Mary Kate Marshall | Madison Kenyon & Mary Kate Marshall

SAN FRANCISCO – The U.S. Court of Appeals for the 9th Circuit received friend-of-the-court briefs this week from female athletes, medical professionals, feminist groups, the United States, and 14 states that all support Idaho’s Fairness in Women’s Sports Act and are asking the court to reverse a district court order which temporarily halted enforcement of the law. The district court’s hold on the law means female athletes must compete against males who identify as female while the lawsuit proceeds.

Alliance Defending Freedom attorneys, representing two collegiate athletes who run track and cross-country at Idaho State University in Pocatello, are defending the law alongside the state of Idaho on appeal to the 9th Circuit and filed their opening brief on Nov. 12 in Hecox v. Little. The two women ADF represents, Madison Kenyon and Mary Kate Marshall, are long-time athletes who are well familiar with the differences in strength, speed, and stamina between comparably gifted and trained male and female athletes.

“Women deserve to compete on a level playing field. Allowing males to compete in girls’ sports reduces women’s athletic opportunities and destroys fair competition,” said ADF Legal Counsel Christiana Holcomb. “The Fairness in Women’s Sports Act is consistent with Title IX and embodies the federal law’s intent of protecting women’s sports for female athletes. Idaho’s law is also constitutionally sound because it seeks to protect women and girls across Idaho based on the real physical differences between the sexes in sports. Nothing in the Constitution requires a state to abandon fairness for girls in order to give special treatment to males who want to compete in girls’ sports.”

“Our clients have already had the deflating experience of losing to a male athlete, and so we are asking the 9th Circuit to allow Idaho to enforce its commonsense law and prevent this injustice from continuing any longer,” Holcomb said.

Notable female athletes—including a hall-of-fame inductee and a former Olympian—highlight in their brief three “objective premises” based on their “combined decades” of athletic experience: “First, people born with male anatomy will have an inherent and generally insurmountable advantage over people born with female anatomy. Second, this advantage does not vanish when a person born with male anatomy identifies as a woman. And third, this advantage cannot be erased by testosterone suppression. It follows, then, that disallowing those born with male anatomy (i.e., transgender women) from participating in women’s sports, even if those individuals suppress their testosterone levels, helps ensure that the playing field in female athletics remains level. This is a conclusion that the district court mistakenly rejected….”

As the Women’s Liberation Front points out in its brief, those attacking Idaho’s law are asking the court “to proclaim that women and girls are no longer a discrete category worthy of civil rights protection, but men and boys who claim to have a female ‘gender identity’ are. If the Court rules in their favor, it will mark a truly fundamental shift in American law and policy that strips women of their Constitutional right to privacy, threatens their physical safety, undercuts the means by which women can achieve educational equality, and ultimately works to erase women and girls under the law.”

The states of Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, and West Virginia in their brief add that the district court made “a crucial mistake. The Act does not draw distinctions based on transgender status, and in fact, it treats an athlete’s gender identity as irrelevant. Nor did Idaho’s legislature enact the statute for the invidious purpose of discriminating based on transgender status. Rather, its purpose is to ensure equal opportunities for women in athletics.”

And in its brief, the U.S. Department of Justice, writing for the United States, notes that the “Equal Protection Clause does not require States to abandon their efforts to provide biological women with equal opportunity to participate in—and enjoy the life-long benefits that flow from—school athletics in order to accommodate the team preferences of transgender athletes. Indeed, the district court’s decision harms the women that Congress desired to protect when it enacted Title IX of the Education Amendments of 1972…, which prohibits sex discrimination by federal funding recipients.”

ADF attorneys also represent four female athletes in a federal lawsuit in Connecticut, where a policy that allows males who identify as female to compete in girls’ athletic events has consistently deprived the four girls of honors and opportunities to compete at elite levels. The U.S. Department of Education Office for Civil Rights found that the Connecticut policy deprives girls of equal athletic opportunities and violates Title IX.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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