IDAHO, USA — Two intervenors of a lawsuit meant to challenge Idaho's transgender athlete law have filed a petition for a US appeals court to issue a rehearing on the matter.
Madison Kenyon and Mary Marshall, two intervenors in the lawsuit and both track athletes at Idaho State University, filed a petition Thursday asking an appeals panel of judges, who affirmed the previous decision to pause the transgender law, to expeditiously grant or deny the petition for a rehearing as "time is of the essence" to "protect women and girls in sports."
Bruce Skaug, R-Nampa, is representing the two women along with three attorneys from the Alliance Defending Freedom.
In August, the US Court of Appeals for the Ninth Circuit upheld a preliminary injunction issued several years ago by an Idaho district judge that the "Fairness in Women’s Sports Act" -- which bars transgender athletes from competing on women's sports teams -- will continue to be placed on pause while litigation over the law continues. Boise State student Lindsay Hecox and another student known as "Jane Doe" sued to challenge the law in 2020, represented by the ACLU.
In its decision, the court found the law likely violates the equal protection clause of the 14th Amendment of the U.S. Constitution. The Ninth Circut panel wrote in their summary opinion on Aug. 17, "The Act bars all transgender women and girls from participating in, or trying out for, public school female sports teams at every age, from primary school through college, and at every level of competition, from intramural to elite teams."
But, the petitioners disagree.
"Across the nation, female athletes have become bystanders in their own sports, as men identifying as women have entered women’s competitions and displaced female competitors," the petition says.
In the petition, the intervenors write that they are not discriminating against transgender athletes because the law actually excludes "all biological males, no matter their identity" from women's athletic teams, and that the law isn't based on transgender status alone.
“Nothing in the Equal Protection Clause’s text suggests that states cannot protect women athletes from male competitors simply because a man identifies as a woman," the petition says.
There are instances in which federal courts have rejected claims that transgender inclusive policies violate others' rights, however. For example, the same appeals court in Parents for Privacy v. Barr ruled that transgender students using facilities that match their identified gender does not violate the Fourteenth Amendment or any rights of others.
Under the "Fairness in Women's Sports Act" athletes would also be subjected to a physical exam if someone were to dispute the student's sex or identity. The Ninth Circuit wrote in their opinion, “(The dispute) would require her to undergo intrusive medical procedures to verify her sex, including gynecological exams. Male student athletes in Idaho are not subject to a similar dispute process." The panel continued, calling that process "humiliating."
The petition claims this "verification process" is not intrusive, and the panel's commentary on how it was, "exceeded their scope" of the panel's jurisdiction, it reads. It also implies the appeals court is hypocritical based on other rulings, like in Clark v. Arizona Interscholastic Association - where the Ninth Circuit ruled a policy including boys on girls' teams would diminish opportunities for girls.
KTVB reached out to the ACLU for comment on the petition, but had not yet received a response at the time of publication. However, ACLU Deputy Director for Transgender Justice Chase Strangio wrote in a previous news release about the ruling, "Idaho’s ban and all others like it are designed to alienate and stigmatize transgender people and we’ll never stop fighting until all transgender youth are given the equal playing field they deserve."
Read the full petition below:
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