Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 1 of 87 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO LINDSAY HECOX, et al., Case No. 1:20-cv-00184-DCN Plaintiffs, MEMORANDUM DECISION AND ORDER v. BRADLEY LITTLE, et al.; Defendants. This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction, proposed intervenors’ Motion to Intervene, and Defendants’ Motion to Dismiss. The Court held oral argument on July 22, 2020 and took the matters under advisement. Upon review, and for the reasons stated below, the Court GRANTS the Motion for Preliminary Injunction (Dkt. 22); GRANTS the Motion to Intervene (Dkt. 30); and GRANTS in PART and DENIES in PART the Motion to Dismiss (Dkt. 40). I. OVERVIEW Plaintiffs in this case challenge the constitutionality of a new Idaho law which excludes transgender women from participating on women’s sports teams. Defendants assert Plaintiffs lack standing, that their claims are not ripe for review, that certain of their claims fail as a matter of law, and that they are not entitled to injunctive relief. The proposed intervenors seek to intervene to advocate for their interests as female athletes and MEMORANDUM DECISION AND ORDER - 1 Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 2 of 87 to defend the law Plaintiffs challenge. The United States has also filed a Statement of Interest in support of Idaho’s law. Dkt. 53. The primary question before the Court—whether the Court should enjoin the State of Idaho from enforcing a newly enacted law which precludes transgender female athletes from participating on women’s sports—involves complex issues relating to the rights of student athletes, physiological differences between the sexes, an individual’s ability to challenge the gender of other student athletes, female athlete’s rights to medical privacy and to be free from potentially invasive sex identification procedures, and the rights of all students to have complete access to educational opportunities, programs, and activities available at school. The debate regarding transgender females’ access to competing on women’s sports teams has received nationwide attention and is currently being litigated in both traditional courts and the court of public opinion. Despite the national focus on the issue, Idaho is the first and only state to categorically bar the participation of transgender women in women’s student athletics. This categorical bar to girls and women who are transgender stands in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally—including the National Collegiate Athletic Association (“NCAA”) and the International Olympic Committee (“IOC”)—which allow transgender women to participate on female sports teams once certain specific criteria are met. In addition to precluding women and girls who are transgender and many who are intersex from participating in women’s sports, Idaho’s law establishes a “dispute” process that allows a currently undefined class of individuals to challenge a student’s sex. Idaho MEMORANDUM DECISION AND ORDER - 2 Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 3 of 87 Code § 33-6203(3). If the sex of any female student athlete—whether transgender or not— is disputed, the student must undergo a potentially invasive sex verification process. This provision burdens all female athletes with the risk and embarrassment of having to “verify” their “biological sex” in order to play women’s sports. Id. Similarly situated men and boys—whether transgender or not—are not subject to the dispute process because Idaho’s law does not restrict individuals who wish to participate on men’s teams. Finally, as an enforcement mechanism, Idaho’s law creates a private cause of action against a “school or institution of higher education” for any student “who is deprived of an athletic opportunity” or suffers any harm, whether direct or indirect, due to the participation of a woman who is transgender on a women’s team. Id. § 33-6205(1). Idaho schools are also precluded from taking any “retaliation or other adverse action” against those who report an alleged violation of the law, regardless of whether the report was made in good faith or simply to harass a competitor. Id. at § 33-6205(2). Plaintiffs seek a preliminary injunction which would enjoin enforcement of Idaho’s law pending trial on the merits. The Court will ultimately be required to decide whether Idaho’s law violates Title IX and/or is unconstitutional, but that is not the question before the Court today. The question currently before the Court is whether Plaintiffs have met the criteria for enjoining enforcement of Idaho’s law for the present time until a trial on the merits can be held. To issue an injunction preserving the status quo by enjoining the law’s enforcement, the Court must primarily decide whether Plaintiffs have constitutional and prudential standing to challenge the law, whether they state facial or only as-applied constitutional challenges, and whether they are likely to succeed on their claim, based upon MEMORANDUM DECISION AND ORDER - 3 Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 4 of 87 the current record, that the law violates the Equal Protection Clause of the Fourteenth Amendment. II. BACKGROUND On March 30, 2020, Idaho Governor Bradley Little (“Governor Little”) signed the Fairness in Women’s Sports Act (the “Act”) into law. Idaho Code Ann. § 33-6201–6206.1 Plaintiffs’ Complaint challenges the constitutionality of the Act. Among other things, Plaintiffs contend that the Act violates their constitutional rights to equal protection, due process, and the right to be free from unconstitutional searches and seizures. Plaintiffs seek preliminary relief solely on their equal protection claim, arguing the Act discriminates on the basis of transgender status by categorically barring transgender women from participating in women’s sports, and also discriminates on the basis of sex by subjecting all women student-athletes to the risk of having to undergo invasive, unnecessary tests to “verify” their sex, while permitting all men student-athletes to participate in men’s sports without such risk. Plaintiffs seek a preliminary injunction to enjoin enforcement of the Act pending trial on the merits. A. Definitions As the Third Circuit recently explained, in the context of issues such as those raised in the instant case, “such seemingly familiar terms as ‘sex’ and ‘gender’ can be misleading.” Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018). The Court accordingly begins by defining relevant terms utilized in this decision. 1 The Act went into effect on July 1, 2020. Idaho Code § 33-6201. MEMORANDUM DECISION AND ORDER - 4 Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 5 of 87 “Sex” is defined as the “anatomical and physiological processes that lead to or denote male or female. Typically, sex is determined at birth based on the appearance of external genitalia.” Id. A person’s “gender identity” is his or her “deep-core sense of self as being a particular gender.” Id. “Although the detailed mechanisms are unknown, there is a medical consensus that there is a significant biologic component underlying gender identity.” Dkt. 22-9, ¶ 18.2 The term “cisgender” refers to a person who identifies with the sex that person was determined to have at birth. Boyertown, 897 F.3d at 522. “Transgender” refers to “a person whose gender identity does not align with the sex that person was determined to have at birth.” Id. A transgender woman “is therefore a person who has a lasting, persistent female gender identity, though the person’s sex was determined to be male at birth.” Id. Transgender individuals may experience “gender dysphoria,” which is “characterized by significant and substantial distress as result of their birth-determined sex being different from their gender identity.” Id. “In order to be diagnosed with gender 2 The Court relies on various declarations filed in support of the Motion for Preliminary Injunction and Motion to Intervene for medical definitions of the terms used herein, and to identify the proposed intervenors and their arguments. The Court also considers extra-pleading materials when assessing Plaintiffs’ Motion for Preliminary Injunction. The Court does not, however, rely on extra-pleading materials (other than those of which it takes judicial notice) in its assessment of Defendants’ Motion to Dismiss, and accordingly does not treat the Motion to Dismiss as a Motion for Summary Judgment. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 921–22 (9th Cir. 2004) (finding a represented party’s submission of extra- pleading materials justified treating the motion to dismiss as a motion for summary judgment). Pursuant to Federal Rule of Evidence 201(c), the Court has discretionary authority to take judicial notice, regardless of whether it is requested to do so by a party, and does in fact do so in this case as it relates to certain materials identified below. Fed. R. Evid. 201. MEMORANDUM DECISION AND ORDER - 5 Case 1:20-cv-00184-DCN Document 63 Filed 08/17/20 Page 6 of 87 dysphoria, the incongruence must have persisted for at least six months and be accompanied by clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Dkt. 22-2, ¶ 19. If left untreated, symptoms of gender dysphoria can include severe anxiety and depression, suicidality, and other serious mental health issues. Id. at ¶ 20. Attempted suicide rates in the transgender community are over 40%. Dkt. 1, at ¶ 103. The term “intersex” is an umbrella term for a person “born with unique variations in certain physiological characteristics associated with sex, “such as chromosomes, genitals, internal organs like testes or ovaries, secondary sex characteristics, or hormone production or response.” Dkt.