Attorney: ‘Reasonable and Constitutional to Exclude Biological Males’ from Girls’ Sports

AP Photo/Pat Eaton-Robb

Attorneys made their arguments before a three-judge panel on Monday in a lawsuit challenging the Fairness in Women’s State Act. A law passed in Idaho to protect biological female athletes from having to compete against biological men.

Idaho is the first state to put such a law in place and was quickly challenged in court. Meanwhile, numerous other states have also crafted, debated, or made similar measures into law.

Attorneys defended the law, saying it isn’t about “animus” against people who believe in gender identity but a necessary move to protect female athletes—both from losing their competitive edge and from potential injury.

“Idaho’s law does not classify at all based on gender identity or transgender status,” W. Scott Zanzig, a deputy state attorney general, told the panel of the United States Court of Appeals for the Ninth Circuit Court, said in a report from the San Francisco Chronicle.  “This is not animus here. This is just a tough policy choice.

“It’s reasonable and constitutional to exclude biological males with female gender identity from female competition,” attorney Roger Brooks said while defending the law on behalf of two women who are on Idaho State University’s track team.

But U.S. District Judge David Nye, who blocked the law from taking effect last August, said the law “discriminates on the basis of transgender status.”

American Civil Liberties Union (ACLU) attorney Chase Strangio used the same argument.

“The entire purpose of the law (was) to exclude trans women and girls, and only trans women and girls, from sports altogether,” Strangio said.

The Chronicle reported:

The three-judge panel, the first in any appellate court to review the issue, gave few indications of its intentions during the hearing, conducted remotely from a courtroom in Los Angeles. The panel will rule at a later date, but the issue could be headed for the Supreme Court.

Since Gov. Brad Little signed the Idaho law in March 2020, four other states have enacted similar legislation, and Gov. Kristi Noem of South Dakota signed an executive order with the same effect. Fourteen states signed legal arguments supporting the Idaho law, while California, 20 other states and the District of Columbia signed arguments opposing it.

Nye, an appointee of former President Donald Trump, cited policies by the NCAA, the International Olympic Committee and regulatory bodies for high school sports requiring transgender females to undergo a year of hormone treatment to lower their testosterone levels before joining a girls’ or women’s team. Since the NCAA adopted its policy in 2011, he said, there have been no reports of any disruptions in women’s collegiate sports caused by transgender participants.

The Chronicle report said one of the judges, Andrew Kleinfeld, said even hormone treatments could not change some biological differences, saying of the biological male athlete — “He’s had 19 years building a bigger body. … There are bells you can’t unring while going through male puberty.”

As Breitbart News reported, the conservative Christian legal organization Alliance Defending Freedom (ADF) represents female athletes seeking a fair playing field, including three in Connecticut.

The ADF interviewed Selina Soule, one of three high school athletes in Connecticut who sued the state’s athletic association for allowing biological men to compete against biological women based on their gender identity:

During Selina’s four years in high school, that policy resulted in two biological males winning 15 women’s state championship titles in track and field—titles that were previously held by nine different girls. Within just three years, girls across the state were denied over 85 chances to compete in elite athletic competitions.

Selina was one of those girls. Clearly, this policy isn’t fair. Men and women are different—and those differences matter, particularly in athletes. A majority of Americans agree. Recent polls show that 74 percent of Californians and 77 percent of likely voters from swing states oppose male athletes competing in women’s sports.

“Why is it so important for girls and women to have separate sports teams?” the ADF asked Soule.

Soule replied: “Boys will always have a physical advantage over girls. That’s why we have women’s sports in the first place. Science and common sense show us that boys are, on average, stronger and faster than girls. So it’s fundamentally unfair to let male athletes come in and dominate girls’ sports.”

Idaho’s Fairness in Women’s Sports Act’s sponsor, Republican state Rep. Barbara Ehardt, a former college basketball player and career coach, works with ADF, NPR reported. 

“Some have labeled these as transgender bills, falsely so,” Ehardt said. “I don’t see that at all. This legislation, it doesn’t care how you identify. That’s the beauty of it. You can identify however you want. This is all about sex, because in the arena of sport, one’s biological sex matters. It just simply does. You can’t get around that.”

The case is Hecox v. Little Nos. 20-35813, 20-35815 in the U.S. Court of Appeal for the Ninth Circuit.

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