Lindsay Hecox v. Bradley Little

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDSAY HECOX; JANE DOE, with No. 20-35813

her next friends Jean Doe and John

Doe, D.C. No. 1:20-cv-

00184-DCN

Plaintiffs-Appellees,

v.

BRADLEY LITTLE, in his official OPINION

capacity as Governor of the State of

Idaho; SHERRI YBARRA, in her

official capacity as the Superintendent

of Public Instruction of the State of

Idaho and as a member of the Idaho

State Board of Education;

INDIVIDUAL MEMBERS OF THE

STATE BOARD OF EDUCATION, in

their official capacities; BOISE

STATE UNIVERSITY; MARLENE

TROMP, in her official capacity as

President of Boise State University;

INDEPENDENT SCHOOL

DISTRICT OF BOISE CITY, # 1;

COBY DENNIS, in his official

capacity as superintendent of the

Independent School District of Boise

2 HECOX V. LITTLE

City #1; INDIVIDUAL MEMBERS

OF THE BOARD OF TRUSTEES OF

THE INDEPENDENT SCHOOL

DISTRICT OF BOISE CITY, # 1; in

their official capacities; INDIVIDUAL

MEMBERS OF THE IDAHO CODE

COMMISSION, in their official

capacities,

Defendants-Appellants,

and

MADISON KENYON; MARY

MARSHALL,

Intervenors.

LINDSAY HECOX; JANE DOE, with No. 20-35815

her next friends Jean Doe and John

Doe, D.C. No. 1:20-cv-

00184-DCN

Plaintiffs-Appellees,

v.

BRADLEY LITTLE, in his official

capacity as Governor of the State of

Idaho; SHERRI YBARRA, in her

official capacity as the Superintendent

of Public Instruction of the State of

HECOX V. LITTLE 3

Idaho and as a member of the Idaho

State Board of Education;

INDIVIDUAL MEMBERS OF THE

STATE BOARD OF EDUCATION, in

their official capacities; BOISE

STATE UNIVERSITY; MARLENE

TROMP, in her official capacity as

President of Boise State University;

INDEPENDENT SCHOOL

DISTRICT OF BOISE CITY, # 1;

COBY DENNIS, in his official

capacity as superintendent of the

Independent School District of Boise

City #1; INDIVIDUAL MEMBERS

OF THE BOARD OF TRUSTEES OF

THE INDEPENDENT SCHOOL

DISTRICT OF BOISE CITY, # 1; in

their official capacities; INDIVIDUAL

MEMBERS OF THE IDAHO CODE

COMMISSION, in their official

capacities,

Defendants,

and

MADISON KENYON; MARY

MARSHALL,

Intervenors-Appellants.

4 HECOX V. LITTLE

Appeal from the United States District Court

for the District of Idaho

David C. Nye, Chief District Judge, Presiding

Argued and Submitted November 22, 2022

San Francisco, California

Filed August 17, 2023

Before: Kim McLane Wardlaw, Ronald M. Gould, and

Morgan Christen, Circuit Judges. *

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Christen

SUMMARY **

Equal Protection/Transgender Status

The panel affirmed the district court’s order

preliminarily enjoining Idaho’s Fairness in Women’s Sports

Act, a categorical ban on the participation of transgender

women and girls in women’s student athletics.

*

Pursuant to General Order 3.2(h), Judge Christen has been drawn to

replace Judge Kleinfeld in this matter. Judge Christen has reviewed the

briefs and the record, and listened to the recording of the oral argument

in this case.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HECOX V. LITTLE 5

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. It also provides a sex dispute verification process

whereby any individual can “dispute” the sex of any female

student athlete in the state of Idaho and 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 held that the district court did not abuse its

discretion when it found, on the record before it, that

plaintiffs were likely to succeed on the merits of their claim

that the Act violates the Equal Protection Clause of the

Fourteenth Amendment.

Citing United States v. Virginia, 518 U.S. 515, 555

(1996), and Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th

Cir. 2019), the panel stated that a heightened level of

scrutiny applies to laws that discriminate on the basis of

transgender status and sex. The district court did not err in

concluding that heightened scrutiny applied because the Act

discriminates on the basis of transgender status by

categorically excluding transgender women from female

sports and on the basis of sex by subjecting all female

athletes, but not male athletes, to invasive sex verification

procedures to implement that policy.

Because the Act subjects only women and girls who wish

to participate in public school athletic competitions to an

intrusive sex verification process and categorically bans

transgender women and girls at all levels, regardless of

whether they have gone through puberty or hormone

therapy, from competing on female, women, or girls teams,

6 HECOX V. LITTLE

and because the State of Idaho failed to adduce any evidence

demonstrating that the Act is substantially related to its

asserted interests in sex equality and opportunity for women

athletes, the panel held that plaintiffs were likely to succeed

on the merits of their equal protection claim.

Concurring in part and dissenting in part, Judge Christen

wrote that given the categorical sweep of the ban on

transgender students, the medical consensus that circulating

testosterone rather than transgender status is an accurate

proxy for athletic performance, and the unusual and extreme

nature of the Act’s sex verification requirements, the district

court did not abuse its discretion by granting injunctive

relief.

Disagreeing with the majority in part, Judge Christen

wrote that she read the sex dispute verification provision to

apply to any student, male or female, who participates on

women’s or girls’ athletic teams. Accordingly, it is the team

an athlete chooses to join that dictates whether they are

subject to the statute’s verification process, not the athlete’s

sex. Judge Christen also wrote that the district court’s

injunction lacked specificity as required by Federal Rule of

Civil Procedure 65(d)(1) because it failed, among other

things, to specify whether it was enjoining all provisions of

the Act, or only some of them, or whether it was enjoining

any specific provision of the Act in its entirety or only as

applied to certain classes of individuals. Finally, Judge

Christen stated that the injunction was overbroad to the

extent that it applies to transgender women who are not

receiving gender-affirming hormone therapy.

HECOX V. LITTLE 7

COUNSEL

W. Scott Zanzig (argued), Dayton P. Reed, Timothy

Longfield, and Brian V. Church, Deputy Attorneys General;

Lincoln D. Wilson; Steven L. Olsen, Chief of Civil

Litigation Division; Brian Kane, Assistant Chief Deputy;

Lawrence G. Wasden, Attorney General; Boise, Idaho, for

Defendants-Appellants.

Kristen K. Waggoner, John J. Bursch, and Christiana M.

Holcomb, Alliance Defending Freedom, Washington, D.C.;

Bruce D. Skaug and Raul R. Labrador, Skaug Law PC,

Nampa, Idaho; Roger G. Brooks, Alliance Defending

Freedom, Scottsdale, Arizona; Christopher P. Schandevel,

Alliance Defending Freedom, Ashburn, Virginia; Cody S.

Barnett, Alliance Defending Freedom, Lansdowne,

Virginia; for Intervenors-Appellants.

Andrew Barr (argued), Cooley LLP, Broomfield, Colorado;

Chase Strangio and James D. Esseks, American Civil

Liberties Union Foundation, New York, New York; Richard

Eppink and Dina M. Flores-Brewer, American Civil

Liberties Union of Idaho Foundation, Boise, Idaho;

Elizabeth Prelogar, Cooley LLP, Washington, D.C.;

Catherine West, Legal Voice, Seattle, Washington; Kathleen

R. Hartnett, Cooley LLP, San Francisco, California; Selim

Aryn Star, Star Law Office PLLC, Hailey, Idaho; for

Plaintiffs-Appellees.

Lauren R. Adams, Women’s Liberation Front, Washington,

D.C., for Amicus Curiae Women’s Liberation Front.

James A. Campbell, Solicitor General; David T. Bydalek,

Chief Deputy Attorney General; Douglas J. Peterson,

Attorney General of Nebraska; Nebraska Attorney General’s

Office, Lincoln, Nebraska; for Amici Curiae States of

8 HECOX V. LITTLE

Nebraska, Alabama, Alaska, Arkansas, Indiana, Kansas,

Kentucky, Louisiana, Mississippi, Montana, Oklahoma,

South Carolina, Texas, and West Virginia.

Kara Dansky, Women’s Human Rights Campaign – USA,

Medford, Oregon, for Amicus Curiae Women’s Human

Rights Campaign – USA.

Randall L. Wenger, Independence Law Center, Harrisburg,

Pennsylvania; Gary S. McCaleb, Flagstaff, Arizona; for

Amici Curiae Medical Professionals in Support of

Interveners-Appellants and Urging Reversal.

Thomas E. Chandler, Matthew J. Donnelly, and Elizabeth

Hecker, Attorneys; Alexander V. Maugeri, Deputy Assistant

Attorney General; Eric S. Dreiband, Assistant Attorney

General; United States Department of Justice, Civil Rights

Division, Appellate Section, Washington, D.C.; Candice

Jackson and Farnaz F. Thompson, Deputy General

Counsels; Reed R. Rubinstein, Principal Deputy General

Counsel; United States Department of Education, Office of

the General Counsel, Washington, D.C.; Peter L. Wucetich,

Assistant United States Attorney; Bart M. Davis, United

States Attorney; Boise, Idaho; for Amicus Curiae United

States.

Edward M. Wenger, Tallahassee, Florida, for Amicus Curiae

Sandra Bucha, Linda Blade, Vicki Huber-Rudawsky, Inga

Thompson, Maria Blower, and Rebecca Dussault.

Chris N. Ryder and Gail Hammer, Lincoln LGBTQ+ Rights

Clinic, Spokane, Washington, for Amicus Curiae Lincoln

LGBTQ+ Rights Clinic.

Jessica L. Ellsworth, Kaitlyn A. Golden, Danielle D.

Stempel, Nel-Sylvia Guzman, and Ray Li, Hogan Lovells

US LLP, Washington, D.C.; Fatima G. Graves, Emily

HECOX V. LITTLE 9

Martin, Sunu Chandy, Neena Chaudhry, Shiwali Patel, and

Cassandra Mensah, National Women’s Law Center,

Washington, D.C.; Jon Greenbaum, David Hinojosa, and

Bryanna A. Jenkins, Lawyers’ Committee for Civil Rights

Under Law, Washington, D.C.; for Amici Curiae National

Women’s Law Center, Lawyers’ Committee for Civil Rights

Under Law and 60 Additional Organizations.

Carl S. Charles, Lambda Legal Defense and Education Fund

Inc., Atlanta, Georgia; Paul D. Castillo, Lambda Legal

Defense and Education Fund Inc., Dallas, Texas; Diana

Flynn and Omar Gonzalez-Pagan, Lambda Legal Defense

and Education Fund Inc., New York, New York; Sasha

Buchert, Lambda Legal Defense and Education Fund Inc.,

Washington, D.C.; for Amici Curiae 176 Athletes in

Women’s Sports, The Women’s Sports Foundation, and

Athlete Ally in Support of Plaintiffs-Appellees and

Affirmance.

Jonah M. Knobler, Patterson Belknap Webb & Tyler LLP,

New York, New York, for Amicus Curiae interACT:

Advocates for Intersex Youth.

Jesse R. Loffler, Cozen O’ Connor, for Amici Curiae

Transgender Women Athletes.

Aaron M. Panner, Kellogg Hansen Todd Figel & Frederick

PLLC, Washington, D.C.; Scott B. Wilkens, Wiley Rein

LLP, Washington, D.C.; for Amici Curiae American

Academy of Pediatrics, American Medical Association,

American Psychiatric Association, and 10 Additional

Healthcare Organizations.

Adam R. Tarosky, Seth D. Levy, and Sarah E. Andre, Nixon

Peabody LLP, Los Angeles, California, for Amicus Curiae

Three Former Idaho Attorneys General.

10 HECOX V. LITTLE

Matthew D. Benedetto, Thomas F. Costello, William Cutler

Pickering, Hale and Dorr LLP, Los Angeles, California;

Adam M. Cambier and Alison Burton, Wilmer Cutler

Pickering, Hale and Dorr LLP, Boston, Massachusetts; for

Amici Curiae Teammates, Coaches, and Allies of

Transgender Athletes.

Angela R. Vicari, Rosalyn Richter, Arnold & Porter Kaye

Scholer LLP, New York, New York; Kirk Jenkins, Arnold

& Porter Kaye Scholer LLP, San Francisco, California; for

Amici Curiae Altria Group Inc., Amalgamated Bank, Asana

Inc., Ben and Jerry’s Homemade Inc., Lush Cosmetics LLC,

Nike Inc., and The Burton Corporation.

Kaliko‘onalani D. Fernandes, Deputy Solicitor General of

Counsel; Kimberly T. Guidry, Solicitor General; Clare E.

Connors, Attorney General of Hawaii; Honolulu, Hawaii;

Linda Fang, Assistant Solicitor General of Counsel; Anisha

S. Dasgupta, Deputy Solicitor General; Barbara D.

Underwood, Solicitor General; Letitia James, Attorney

General, State of New York; New York, New York; Xavier

Becerra, California Attorney General, Sacramento,

California; Philip J. Weiser, Colorado Attorney General,

Denver, Colorado; William Tong, Connecticut Attorney

General, Hartford, Connecticut; Kathleen Jennings,

Delaware Attorney General, Wilmington, Delaware;

Kwame Raoul, Illinois Attorney General, Chicago, Illinois;

Aaron M. Frey, Maine Attorney General, August, Maine;

Brian E. Frosh, Maryland Attorney General, Baltimore,

Maryland; Maura Healey, Commonwealth of Massachusetts

Attorney General, Boston, Massachusetts; Keith Ellison,

Minnesota Attorney General, St. Paul, Minnesota; Aaron D.

Ford, Nevada Attorney General, Carson City, Nevada;

Gurbir S. Grewal, New Jersey Attorney General, Trenton,

New Jersey; Hector Balderas, New Mexico Attorney

HECOX V. LITTLE 11

General, Santa Fe, New Mexico; Joshua E. Stein, North

Carolina Attorney General, Raleigh, North Carolina; Ellen

F. Rosenblum, Oregon Attorney General, Salem, Oregon;

Joshua Shapiro, Commonwealth of Pennsylvania Attorney

General, Philadelphia, Pennsylvania; Peter F. Neronha,

Rhode Island Attorney General, Providence, Rhode Island;

Thomas J. Donovan, Jr., Vermont Attorney General,

Montpelier, Vermont; Mark R. Herring, Commonwealth of

Virginia Attorney General, Richmond, Virginia; Robert W.

Ferguson, Washington Attorney General, Olympia,

Washington; Karl A. Racine, District of Columbia Attorney

General, Washington, D.C.; for Amici Curiae States of New

York, Hawai‘i, California, Colorado, Connecticut,

Delaware, Illinois, Maine, Maryland, Massachusetts,

Minnesota, Nevada, New Jersey, New Mexico, North

Carolina, Oregon, Pennsylvania, Rhode Island, Vermont,

Virginia, and Washington, and the District of Columbia.

Susan B. Manning, Morgan Lewis & Bockius LLP,

Washington, D.C.; for Amici Curiae GLBTQ Legal

Advocates & Defenders and the National Center for Lesbian

Rights.

Abbey J. Hudson, Gibson Dunn & Crutcher LLP, Los

Angeles, California, for Amicus Curiae The Trevor Project

Inc.

12 HECOX V. LITTLE

OPINION

WARDLAW, Circuit Judge:

In March 2020, Idaho enacted the Fairness in Women’s

Sports Act, Idaho Code §§ 33-6201⁠–06 (2020) (the “Act”), a

first-of-its-kind categorical ban on the participation of

transgender women and girls in women’s student athletics.

At the time, Idaho had no history of transgender women and

girls participating in competitive student athletics, even

though Idaho’s interscholastic athletics organization allowed

transgender girls to compete on female athletic teams under

certain specified conditions. Elite athletic regulatory bodies,

including the National Collegiate Athletic Association

(NCAA) and the International Olympic Committee (IOC),

also had policies allowing transgender women athletes to

compete if they met certain criteria. The Act, however, bars

all transgender girls and women from participating in, or

even 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. See

Idaho Code § 33-6203(1)–(2). The Act also provides a sex

dispute verification process whereby any individual can

“dispute” the sex of any female student athlete in the state of

Idaho and require her to undergo intrusive medical

procedures to verify her sex, including gynecological exams.

See Idaho Code § 33-6203(3). Male student athletes in

Idaho are not subject to a similar dispute process.

Today, we decide only the question of whether the

federal district court for the District of Idaho abused its

discretion in August 2020 when it preliminarily enjoined the

Act, holding that it likely violated the Equal Protection

Clause of the Fourteenth Amendment. Because the Act

HECOX V. LITTLE 13

subjects only women and girls who wish to participate in

public school athletic competitions to an intrusive sex

verification process and categorically bans transgender girls

and women at all levels from competing on “female[],

women, or girls” teams, Idaho Code § 33-6203(2), and

because the State of Idaho failed to adduce any evidence

demonstrating that the Act is substantially related to its

asserted interests in sex equality and opportunity for women

athletes, we affirm the district court’s grant of preliminary

injunctive relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

As the district court noted, and as we recognize in this

context, “such seemingly familiar terms as ‘sex and gender’

can be misleading,” Hecox v. Little, 479 F. Supp. 3d 930, 945

(D. Idaho 2020) (quoting Doe ex rel. Doe v. Boyertown Area

Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018)). We therefore

adopt the terminology that has been employed throughout

this case.

“Gender identity” is “the term used to describe a person’s

sense of being male, female, neither, or some combination

of both.” 1 A person’s “sex” is typically assigned at birth

based on an infant’s external genitalia, though “external

genitalia” do not always align with other sex-related

characteristics, which include “internal reproductive organs,

gender identity, chromosomes, and secondary sex

characteristics.” A “transgender” individual’s gender

identity does not correspond to their sex assigned at birth,

while a “cisgender” individual’s gender identity corresponds

1

Joshua D. Safer & Vin Tangpricha, Care of Transgender Persons, 381

N. Eng. J. Med. 2451, 2451 (2019)

14 HECOX V. LITTLE

with the sex assigned to them at birth. Around two percent

of the population are born “intersex,” which is an umbrella

term for people “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.” Id. at 946 (internal quotation marks omitted).

Currently, over 1.6 million adults and youth identify as

transgender in the United States, or roughly 0.6 percent of

Americans who are 13 years old or older. 2 Youth ages 13 to

17 are significantly more likely to identify as transgender,

with the Center for Disease Control (CDC) estimating that

roughly 1.8 percent of high school students identify as

transgender. See Br. of Amici Curiae Am. Acad. of

Pediatrics, et al. (“AAP Br.”) at 10.

Transgender individuals often experience “gender

dysphoria,” which is defined by the Fifth Edition of the

Diagnostic and Statistics Manual of Mental Disorders

(DSM-5) as a condition where patients experience “[a]

marked incongruence between one’s experienced/expressed

gender and primary and/or secondary sex characteristics”

that “is associated with clinically significant distress or

impairment in social, occupation, or other important areas of

functioning.” 3 For over 30 years, medical professionals

have treated individuals experiencing gender dysphoria

following the protocols laid out in the Standards of Care for

2

See Jody L. Herman, Andrew R. Flores, Kathryn K. O’Neill, How Many

Adults and Youth Identify as Transgender in the United States?, Williams

Inst. 1 (2022).

3

See Am. Psychiatric Ass'n, Diagnostic and Statistics Manual of Mental

Disorders 452–53 (5th ed. 2013).

HECOX V. LITTLE 15

the Health of Transsexual, Transgender, and Gender

Nonconforming People (Version 7), which were developed

by the World Professional Association for Transgender

Health (WPATH). AAP Br. at 19.

B.

On March 16, 2020, Idaho passed House Bill 500

(“H.B. 500”), a categorical ban against transgender women

and girls’ participation in any public-school funded

women’s sport, implemented by subjecting all female

athletes to an intrusive sex verification process if their

gender is disputed by anyone. See H.R. 500, 65th Leg., 2d

Reg. Sess. (Idaho 2020). Although Idaho was the first state

in the nation to issue such a ban, twenty other states have

enacted similar—though perhaps not as potentially

intrusive against all female athletes—restrictions on female

transgender athletes. 4

4

Since the Act’s passage, twenty other states have passed laws limiting

the participation of transgender students in women’s athletics. However,

no other state appears to have enacted an enforcement mechanism for

those restrictions like the sex dispute verification process in the Act. See

Ala. Code § 16-1-52 (2021); Ariz. Rev. Stat. Ann. § 15-120.02 (2022);

Ark. Code Ann. § 6-1-107 (West 2021); Fla. Stat. Ann. § 1006.205

(West 2021); Ind. Code Ann. § 20-33-13-4 (West 2022); Iowa Code

Ann. § 261I.2 (West 2022); H.B. 2238, 2023 Leg. Sess. (Kan. 2023); Ky.

Rev. Stat. Ann. § 164.2813 (West 2022); La. Stat. Ann. § 4:442 (2022);

Miss. Code Ann. § 37-97-1 (West 2021); Mont. Code Ann. § 20-7-1306

(West 2021); Legis. Assemb. 1489, 68th Legis. Assemb., Reg. Sess.

(N.D. 2023); Legis. Assemb. 1249, 68th Legis. Assemb., Reg. Sess.

(N.D. 2023); Okla. Stat. Ann. tit. 70, § 27-106 (West 2022); S.C. Code

Ann. § 59-1-500 (2022); S.D. Codified Laws § 13-67-1 (2022); Tenn.

Code Ann. § 49-7-180 (2022); Tex. Educ. Code Ann. § 33.0834 (West

2022); Utah Code Ann. § 53g-6-902 (West 2022); W. Va. Code Ann.

§ 18-2-25d (West 2021); S. 92, 67th Leg., Gen. Sess. (Wyo. 2023).

16 HECOX V. LITTLE

In the United States, high school interscholastic athletics

are generally governed by state interscholastic athletic

associations, such as the Idaho High School Activities

Association (IHSAA). The NCAA sets policies for member

colleges and universities, including Boise State University

(BSU) and other Idaho colleges and universities. Prior to the

Act’s passage, IHSAA policy allowed transgender girls in

K–12 athletics in Idaho to compete on girls’ teams after they

had completed one year of hormone therapy suppressing

testosterone under the care of a physician. At that time,

NCAA policy similarly allowed transgender women

attending member colleges and universities in Idaho (and

elsewhere) to compete on women’s teams after one year of

hormone therapy to suppress testosterone. 5 Idaho itself had

no record of transgender women and girls participating in

competitive women’s sports.

On February 13, 2020, Representative Barbara Ehardt

introduced H.B. 500 in the Idaho House of Representatives.

At the first hearing on the bill, Ty Jones, Executive Director

of the IHSSA, testified that no student in Idaho had ever

complained about participation in public school sports by

transgender athletes, and no transgender athlete had ever

competed in Idaho under the existing IHSSAA policy.

Representative Ehardt herself acknowledged that she had no

5

In April 2023, the NCAA updated its policy to require that transgender

student-athletes meet the “sport-specific standard[s] (which may include

testosterone levels, mitigation timelines and other aspects of sport-

governing body policies)” of the national governing body of that sport.

See Press Release, NCAA, Transgender Student-Athlete Participation

Policy (April 17, 2023),

https://www.ncaa.org/sports/2022/1/27/transgender-participation-

policy.aspx (last visited May 23, 2023).

HECOX V. LITTLE 17

evidence to date that any person in Idaho had ever disputed

an athlete’s eligibility to play based on that athlete’s gender.

After the bill passed out of the Idaho House Committee,

Idaho Attorney General Lawrence Wasden warned in a

written opinion letter to the House that H.B. 500 raised

serious constitutional questions due to the legislation’s

disparate treatment of transgender and intersex athletes and

the potential invasion of all female athletes’ privacy inherent

in the sex dispute verification process. Nevertheless, the bill

proceeded to a debate and passed the House floor on

February 26, 2020.

After passage by the House, H.B. 500 was heard by the

Senate State Affairs Committee and sent to the entire Idaho

Senate on March 10, 2020. On March 11, 2020, the World

Health Organization declared COVID-19 a pandemic and

many states adjourned legislative sessions indefinitely. The

Idaho Senate remained in session, however, and passed H.B.

500 as amended on March 16, 2020. The House concurred

in the Senate amendments on March 18, and the bill was

delivered to Idaho Governor Bradley Little on March 19,

2020.

As Governor Little considered the bill, critics sharply

contested the legislation’s findings and legality. Professor

Dorianne Lambelet Coleman, whose work on testosterone

and athletics was cited in the legislative findings in support

of the bill, wrote to Governor Little urging him to veto the

bill and explaining that her research was misinterpreted and

misused in the legislative findings. Similarly, five former

Idaho Attorneys General implored Governor Little to veto

18 HECOX V. LITTLE

the Act, labeling it a “legally infirm statute.” 6 Nonetheless,

Governor Little signed H.B. 500 into law on March 30, 2020,

and it went into effect on July 1, 2020.

C.

In enacting H.B. 500, the legislature made several

findings purportedly based on Professor Coleman’s study,

including “that there are ‘inherent [biological] differences

between men and women,’” Idaho Code § 33-6202(1)

(quoting United States v. Virginia (“VMI”), 518 U.S. 515,

533 (1996)), and that men have “higher natural levels of

testosterone,” id. § 33-6202(4), which “have lifelong effects,

including those most important for success in sport,” id.

§ 33-6202(5). Relying on Professor Coleman’s work, the

legislature found that “[t]he benefits that natural testosterone

provides to male athletes is [sic] not diminished through the

use of puberty blockers and cross-sex hormones.” Id. § 33-

6202(11). The legislature also found that “women’s

performances at the high[est] level [of athletics] will never

match those of men.” Id. § 33-6202(9) (quoting Valterie

Thibault et al., Women and Men in Sport Performance: The

Gender Gap Has Not Evolved Since 1983, 9 J. of Sports Sci.

& Med. 214, 219 (2010)). The legislature concluded that

“[h]aving separate sex-specific teams furthers efforts to

promote sex equality” by “providing opportunities for

female athletes to demonstrate their skill, strength, and

athletic abilities, while also providing them with

opportunities to obtain recognition and accolades, college

6

See also Tony Park et al., 5 Former Idaho Attorneys General Urge

Transgender Bill Veto, Idaho Statesman (Mar. 17, 2020),

https://www.idahostatesman.com/opinion/readers-

opinion/article241267071.html (last visited May 23, 2023).

HECOX V. LITTLE 19

scholarships, and numerous other long-term benefits that

flow from success in athletic endeavors.” Id. § 33-6202(12).

Three provisions of the Act are most salient to this

appeal. First, the Act provides that “[i]nterscholastic, inter-

collegiate, intramural, or club athletic teams or sports that

are sponsored by a [public school]” should be organized

“based on biological sex.” Id. § 33-6203(1). It specifically

provides that:

Interscholastic, intercollegiate, intramural, or

club athletic teams or sports that are

sponsored by a public primary or secondary

school, a public institution of higher

education, or any school or institution whose

students or teams compete against a public

school or institution of higher education shall

be expressly designated as one (1) of the

following based on biological sex:

(a) Males, men, or boys;

(b) Females, women, or girls; or

(c) Coed or mixed.

Id. The Act then provides that “[a]thletic teams or sports

designated for females, women, or girls shall not be open to

students of the male sex.” Id. at § 33-6203(2) (the

“categorical ban provision”). The Act’s provisions apply to

all levels of competition in Idaho state schools, including

elementary school and club teams, and do not include any

limitation for transgender individuals who wish to

participate on athletic teams designated for men. Moreover,

the provisions apply to students in nonpublic schools “whose

20 HECOX V. LITTLE

students or teams compete against a public school or

institution of higher education.” Id. at § 33-6203(1).

Second, the Act creates a “sex verification” process to be

invoked by any individual who wishes to “dispute” a

student’s sex, providing that:

A dispute regarding a student’s sex shall be

resolved by the school or institution by

requesting that the student provide a health

examination and consent form or other

statement signed by the student’s personal

health care provider that shall verify the

student’s biological sex. The health care

provider may verify the student’s biological

sex as part of a routine sports physical

examination relying only on one (1) or more

of the following: the student’s reproductive

anatomy, genetic makeup, or normal

endogenously produced testosterone levels.

Id. at § 33-6203(3) (the “sex dispute verification provision”).

And third, the Act creates an enforcement mechanism to

ensure compliance with its provisions by establishing a

private cause of action for any student who is “deprived of

an athletic opportunity or suffers any direct or indirect harm

as a result of a violation of [the Act].” Id. at § 33-6205(1).

D.

On April 15, 2020, Lindsay Hecox (“Lindsay”), a

transgender woman who wishes to try out for the BSU

women’s track and cross-country teams, and Jane Doe

(“Jane”), a cisgender woman who plays on high school

varsity teams and feared that her sex would be “disputed”

HECOX V. LITTLE 21

under the Act due to her masculine presentation, filed this

lawsuit against Governor Little, Idaho Superintendent of

Public Instruction Sherri Ybarra, and various school officials

at both the high school and collegiate level (collectively,

“Idaho”). They sought a declaratory judgment that the Act

violates Title IX and the United States Constitution,

including the Equal Protection Clause, and preliminary and

permanent injunctions against the Act’s enforcement, as well

as an award of costs, expenses, and reasonable attorneys’

fees.

On May 26, 2020, Madison (“Madi”) Kenyon and Mary

(“MK”) Marshall (collectively, “the Intervenors”) were

permitted to intervene in this case. Intervenors are cisgender

women residing in Idaho and collegiate athletes who run

track and cross-country on scholarship at Idaho State

University. In 2019, both athletes competed against and lost

to June Eastwood, a transgender woman athlete at the

University of Montana, and found it a “discouraging” and

“deflating” experience.

On April 30, 2020, Plaintiffs moved for preliminary

injunctive relief based solely on their equal protection

claims. The district court issued preliminary injunctive

relief in August 2020, ruling that both Plaintiffs were likely

to succeed on the merits of their equal protection claims and

would suffer irreparable harm if the injunction was not

granted, and that the balance of equities weighed in favor of

an injunction. Idaho and the Intervenors (collectively, the

“Appellants”) timely appealed.

We first held oral argument in this appeal on May 3,

2021. At that time, Lindsay informed the court that she had

tried out for and failed to make the women’s track team and

that she subsequently withdrew from BSU classes in late

22 HECOX V. LITTLE

October 2020. Because the parties’ arguments raised several

unanswered factual questions as to whether Lindsay’s claim

was moot, we remanded the case to the district court for

further factual development and findings on justiciability

questions on June 24, 2021.

On July 18, 2022, the district court issued factual

findings and concluded that Lindsay’s claim was not moot.

We affirmed the district court’s determination that Lindsay’s

claim was not moot in a separate unanimous order issued on

January 30, 2023. See Hecox v. Little (Hecox II), No. 20-

35813, 2023 WL 1097255, at *1 (9th Cir. Jan. 30, 2023). 7

We then asked the parties to brief us on which claims

remained for decision in this appeal and any intervening

authority. The parties agree that the only issue that we must

decide is whether the district court abused its discretion in

issuing the preliminary injunction.

II. STANDARD OF REVIEW

We review a district court’s grant of a preliminary

injunction for an abuse of discretion. Olson v. California, 62

F.4th 1206, 1218 (9th Cir. 2023). That said, “legal issues

underlying the injunction are reviewed de novo because a

district court would necessarily abuse its discretion if it

7

In our January order, we determined that Lindsay’s claim was not moot

when she withdrew from BSU in October 2020, because when she left

she expressed a concrete plan to re-enroll and try out for BSU sports

teams. Hecox II, 2023 WL 1097255 at *1. Lindsay followed through on

those plans by re-enrolling at BSU after she established Idaho state

residency and training to participate in women’s sports teams. Id.

Indeed, Lindsay plans to try out again for the BSU women’s cross-

country and track teams in Fall 2023, and has been playing for the BSU

women’s club soccer team since Fall 2022. Id. at *2. Absent the

preliminary injunction against the Act’s enforcement, Lindsay would be

banned from participating on the BSU women’s club soccer team. Id.

HECOX V. LITTLE 23

based its ruling on an erroneous view of law.” adidas Am.,

Inc. v. Skechers USA, Inc., 890 F.3d 747, 753 (9th Cir. 2018)

(quoting GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199,

1204 (9th Cir. 2000)); see also Sw. Voter Registration Educ.

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). We do

“not ‘determine the ultimate merits’” of the case, “but rather

‘determine only whether the district court correctly distilled

the applicable rules of law and exercised permissible

discretion in applying those rules to the facts at hand.’”

Saravia for A.H. v. Sessions, 905 F.3d 1137, 1141–42 (9th

Cir. 2018) (quoting Fyock v. Sunnyvale, 779 F.3d 991, 995

(9th Cir. 2015)). However, we will reverse a grant of the

preliminary injunction if the district court “based its decision

. . . on clearly erroneous findings of fact.” Does 1-5 v.

Chandler, 83 F.3d 1150, 1552 (9th Cir. 1996).

We review the scope of a preliminary injunction for an

abuse of discretion. California v. Azar, 911 F.3d 558, 567

(9th Cir. 2018).

III. PRELIMINARY INJUNCTION

“A preliminary injunction is ‘an extraordinary and

drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of

persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.

2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972

(1997) (per curiam) (emphasis in original)). “A plaintiff

seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008). “When the government is a party,

24 HECOX V. LITTLE

these last two factors merge.” Drakes Bay Oyster Co. v.

Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

A. Likelihood of Success on the Merits

The primary issue presented by this appeal is whether the

district court abused its discretion in concluding that Lindsay

was likely to succeed on the merits of her equal protection

challenge. The Fourteenth Amendment provides that “[n]o

State shall . . . deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1.

In other words, “all persons similarly situated should be

treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). The state may not discriminate

against classes of people in an “arbitrary or irrational” way

or with the “bare . . . desire to harm a politically unpopular

group.” Id. at 446–47.

When considering an equal protection claim, we

determine what level of scrutiny applies to a classification

under a law or policy, and then decide whether the policy at

issue survives that level of scrutiny. Our “general rule is that

legislation is presumed to be valid and will be sustained if

the classification drawn by the statute is rationally related to

a legitimate state interest,” id. at 440, otherwise known as

rational basis review. However, as gender classifications

“generally provide[] no sensible ground for differential

treatment,” id., “‘all gender-based classifications today’

warrant ‘heightened scrutiny.’” VMI, 518 U.S. at 555

(quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136

(1994)). Under heightened scrutiny, “a party seeking to

uphold government action based on sex must establish an

‘exceedingly persuasive justification’ for the classification.”

Id. at 524 (quoting Mississippi Univ. for Women v. Hogan,

458 U.S. 718, 724 (1982)).

HECOX V. LITTLE 25

1. Heightened scrutiny applies.

The district court did not err in concluding that

heightened scrutiny applies because the Act discriminates

against transgender women by categorically excluding them

from female sports, as well as on the basis of sex by

subjecting all female athletes, but no male athletes, to

invasive sex verification procedures to implement that

policy. Appellants contend that the Act classifies based only

on sex, not “transgender status,” and permissibly excludes

“biological males” from female sports under our precedent.

See, e.g., Clark, ex rel. Clark v. Arizona Interscholastic Ass’n

(“Clark I”), 695 F.2d 1126, 1131–32 (9th Cir. 1982) (holding

that excluding boys from a girls’ high school volleyball team

was permissible to redress past discrimination against

women athletes and to promote equal opportunity for

women). We conclude that while the Act certainly classifies

on the basis of sex, it also classifies based on transgender

status, triggering heightened scrutiny on both grounds.

a. The Act discriminates based on transgender status.

Appellants argue that the Act does not discriminate based

on transgender status because “[t]he distinction and statutory

classification is based entirely on [biological] sex, not

gender identity.” They assert that the Act’s definition of

“biological sex” describes only the “physiological

differences between the sexes relevant to athletics.” But the

Act explicitly references transgender women, as did its

legislative proponents, and its text, structure, purpose, and

effect all demonstrate that the Act categorically bans

transgender women and girls from public school sports

teams that correspond with their gender identity.

Section 33-6202 straightforwardly sets forth the

“legislative findings and purpose” of the Act, and makes

26 HECOX V. LITTLE

clear that its animating purpose was to ban transgender

women from “biologically female” teams. These findings

explicitly discuss transgender women athletes by stating that

“a man [sic] who identifies as a woman and is taking cross-

sex hormones ‘had an absolute advantage’ over female

athletes,” and noting that “[t]he benefits that natural

testosterone provides to male athletes is [sic] not diminished

through the use of puberty blockers and cross-sex

hormones.” Idaho Code § 33-6202(11).

During the legislative debate on H.B. 500, the Act’s

supporters stated repeatedly that the Act’s purpose was to

ban transgender women athletes from participating on

female athletic teams in Idaho. Representative Ehardt, who

introduced the bill, characterized the law as a “preemptive”

strike that would allow Idaho to “remove [transgender

women] and replace them with the young gal that should

have been on the team.” Representative Ehardt reiterated

that the Act would require transgender women to “compete

on the side of those biological boys and men with whom they

look or, about whom they look alike.” Much of the

legislative debate centered around two transgender women

athletes running track in Connecticut high schools, as well

as one running college track in Montana, and the potential

“threat” those athletes presented to female athletes in Idaho.

When the then-Idaho Attorney General Wasden expressed

concerns about the Act’s constitutionality, he expressly

described it as “targeted toward transgender and intersex

athletes.”

The plain language of section 33-6203 bans transgender

women from “biologically female” teams. The Act divides

sports teams into three categories based on biological sex:

“(a) Males, men, or boys; (b) Females, women, or girls; or

(c) Coed or mixed.” Id. § 33-6203(1). Sports designated for

HECOX V. LITTLE 27

“females, women, or girls” are not open to students of the

male sex. Id. § 33-6203(2). And the methods for

“verify[ing] the student’s biological sex” are restricted to

“reproductive anatomy, genetic makeup, or normal

endogenously produced testosterone levels.” Id. § 33-

6203(3). However, most gender-affirming medical care for

transgender females, especially minors, will not or cannot

alter the characteristics described in the only three

verification methods prescribed by the Act, thus effectively

banning transgender females from female sports. As the

district court determined, “the overwhelming majority of

women who are transgender have XY chromosomes,” which

indicate the male sex, and transgender women cannot change

that genetic makeup when they transition. Hecox, 479 F.

Supp. 3d at 984. Similarly, as medical expert Dr. Deanna

Adkins opined, many transgender women and girls do not

undergo gender-affirming genital surgery to alter their

external “reproductive anatomy,” often because they cannot

afford it or it is inappropriate for their individual needs.

Further, because surgery cannot change transgender

women’s internal reproductive anatomy by creating ovaries,

Dr. Adkins testified that transgender women “typically

continue to need estrogen therapy” even after surgery and

can never alter their “endogenously produced”—or naturally

produced—testosterone levels. By contrast, the Act does not

allow sex to be verified by a transgender woman’s levels of

circulating testosterone, which can be altered through

medical treatment. A transgender woman like Lindsay, for

example, can lower her circulating testosterone levels

through hormone therapy to conform to elite athletic

regulatory guidelines, but cannot currently alter the

endogenous testosterone that her body naturally produces.

Yet the district court found and the record before it supports

28 HECOX V. LITTLE

that circulating testosterone is the “one [sex-related] factor

that a consensus of the medical community appears to agree”

actually affects athletic performance. Id.

Appellants suggest that “biological sex” is a neutral and

well-established medical and legal concept, rather than one

designed precisely by the Idaho legislature to exclude

transgender and intersex people. 8 But the Act’s definition of

8

In supplemental briefing, Appellants also argue that the Supreme

Court’s recent decisions in Dobbs v. Jackson Women’s Health Org., 142

S. Ct. 2228 (2022) and N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142

S. Ct. 2111 (2022) “are fatal to Hecox’s claim” because the ratifiers of

the Fourteenth Amendment would have understood “male” to

correspond to the definition of “biological male” written into the Act.

We fail to see how Dobbs, a substantive due process decision about

whether the federal Constitution protects a woman’s right to obtain an

abortion, and Bruen, a Second Amendment decision about gun rights, are

relevant to an equal protection claim based on sex discrimination, unless

Appellants are suggesting that the Framers would have understood the

term “biological sex” by reference to reproductive anatomy, genetic

make-up, or normal endogenously produced testosterone levels. Indeed,

the ratifiers of the Fourteenth Amendment would certainly not have

understood the Act’s definition of “biological sex.” For example, the

drafters of the Fourteenth Amendment would have had no concept of

what “endogenously produced testosterone levels” meant in 1868,

because testosterone was not named and isolated as a hormone until

1935. See John M. Tomlinson, The Testosterone Story, Trends in

Urology & Men’s Health 34, 35 (2012). Similarly, the ratifiers would

not have understood how “genetic makeup” influences sex, as

chromosomes were first discovered by Walther Flemming in 1882. D.W.

Rudge, The Man Who Invented the Chromosome, 97 Heredity 136, 136

(2006) (reviewing Oren Harman, The Man Who Invented the

Chromosome: A Life of Cyril Darlington (2004)).

Moreover, there is evidence that transgender people have existed since

ancient times. See generally Lauren Talalay, The Gendered Sea:

Iconography, Gender, and Mediterranean Prehistory, in THE

ARCHEOLOGY OF MEDITERRANEAN PREHISTORY 130–33 (Emma Blake

HECOX V. LITTLE 29

“biological sex” is likely an oversimplification of the

complicated biological reality of sex and gender. As Dr.

Joshua Safer, Executive Director of the Center for

Transgender Medicine and Surgery at Mount Sinai,

explained in his declaration, citing the Endocrine Society

Guidelines:

The phrase “biological sex” is an imprecise

term that can cause confusion. A person’s sex

encompasses the sum of several biological

attributes, including sex chromosomes,

certain genes, gonads, sex hormone levels,

internal and external genitalia, other

secondary sex characteristics, and gender

identity. These attributes are not always

aligned in the same direction.

Indeed, two percent of all babies are born “intersex,” or with

“a wide range of natural variations in physical traits—

including external genitals, internal sex organs,

& A. Bernard Knapp eds., 2005). Appellants appear to argue that

because transgender people were marginalized in 1868, they should be

afforded no constitutional protections on the basis of their transgender

status. But this argument would undermine decades of Supreme Court

precedent striking down laws that discriminate on the basis of sex. See

Reed v. Reed, 404 U.S. 71, 76 (1971) (holding that an Idaho statute that

preferenced men as administrators of estates “ma[d]e the very kind of

arbitrary legislative choice forbidden by the Equal Protection Clause of

the Fourteenth Amendment”); Frontiero v. Richardson, 411 U.S. 677,

687 (1973) (“[S]tatutory distinctions between the sexes often have the

effect of invidiously relegating the entire class of females to inferior legal

status without regard to the actual capabilities of its individual

members.”); see also Weinberger v. Weisenfeld, 420 U.S. 636, 645

(1975); Craig v. Boren, 429 U.S. 190, 210 (1976); Duren v. Missouri,

439 U.S. 357, 360 (1979); VMI, 518 U.S. at 519.

30 HECOX V. LITTLE

chromosomes, and hormones—that do not fit typical binary

notions of male and female bodies.” Br. of Amici Curiae

InterACT at 3–4. Intersex people who identify as women

are equally banned under the Act from playing on Idaho

women’s teams. And while scientists are not fully certain

why some people identify as transgender, it appears likely

that there is some biological explanation—such as

gestational exposure to elevated levels of testosterone—that

causes certain individuals to identify as a different gender

than the one assigned to them at birth. See AAP Br. at 14.

We have previously rejected an argument like Appellants

raise here—that because section 33-6203 uses “biological

sex” in place of the word “transgender,” it is not targeted at

excluding transgender girls and women. In Latta v. Otter,

771 F.3d 456 (9th Cir. 2014), we held that Idaho and Nevada

laws that banned same-sex marriage discriminated on the

basis of sexual orientation, even though the laws did so by

classifying couples based on “procreative capacity” instead

of sexual orientation. Id. at 467–68. We explained:

Effectively if not explicitly, [defendants]

assert that while these laws may disadvantage

same-sex couples and their children,

heightened scrutiny is not appropriate

because differential treatment by sexual

orientation is an incidental effect of, but not

the reason for, those laws. However, the laws

at issue distinguish on their face between

opposite-sex couples, who are permitted to

marry and whose out-of-state marriages are

recognized, and same-sex couples, who are

not permitted to marry and whose marriages

are not recognized. Whether facial

HECOX V. LITTLE 31

discrimination exists “does not depend on

why” a policy discriminates, “but rather on

the explicit terms of the discrimination.”

Hence, while the procreative capacity

distinction that defendants seek to draw could

represent a justification for the discrimination

worked by the laws, it cannot overcome the

inescapable conclusion that Idaho and

Nevada do discriminate on the basis of sexual

orientation.

Id. at 467–68 (quoting Int’l Union, United Auto., Aerospace

& Agr. Implement Workers of Am., UAW v. Johnson

Controls, Inc., 499 U.S. 187, 199 (1991)). Here, the Act’s

use of “biological sex” functions as a form of “[p]roxy

discrimination.” Pac. Shores Props., LLC v. City of Newport

Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013). The

definition of “biological sex” in the Act is written with

“seemingly neutral criteria that are so closely associated with

the disfavored group that discrimination on the basis of such

criteria is, constructively, facial discrimination against the

disfavored group.” Id.; see also Bray v. Alexandria Women’s

Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing

yarmulkes is a tax on Jews.”); Lawrence v. Texas, 539 U.S.

558, 575 (2003) (“When homosexual conduct is made

criminal by the law of the State, that declaration in and of

itself is an invitation to subject homosexual persons to

discrimination . . . .”). The Act’s specific classification of

“biological sex” has similarly been carefully drawn to target

transgender women and girls, even if it does not use the word

“transgender” in the definition.

Adams ex rel. Kasper v. School Bd. of St. Johns Cnty.

(“Adams”), 57 F.4th 791 (11th Cir. 2022) (en banc), upon

32 HECOX V. LITTLE

which Appellants rely to support their argument that the Act

does not discriminate against transgender girls or women, is

inapposite. There, the Eleventh Circuit upheld a lower court

order rejecting an equal protection challenge to a K-12

school policy that provided female, male, and sex-neutral

bathrooms and required male students to use the male-

designated bathrooms, female students to use the female

bathrooms, and accommodated transgender students with

the sex-neutral bathrooms. See id. at 797. The policy

defined “male” and “female” as the gender identified on a

student’s birth certificate. See id. The Eleventh Circuit

rejected the argument that the policy unconstitutionally

discriminated on the basis of transgender status because it

was “substantially related” to the school district’s important

interest in securing its pupils’ privacy and welfare and was

not targeted at transgender students—at most, it had a

disparate impact upon them which did not rise to the level of

a constitutional violation because no animus was shown. See

id. at 811. Importantly, in Adams—as opposed to here—

there was “no [record] evidence suggesting that the School

Board enacted the [] policy because of . . . its adverse effects

upon transgender students.” Id. at 810 (second alteration in

original) (internal quotation marks omitted). To the contrary,

the school district in Adams had studied the issues raised by

the LGBTQ community and had also enacted policies that

affirmatively accommodated transgender students. 9

Moreover, bathrooms by their very nature implicate

9

Although Adams is plainly distinguishable, we express no view on the

merits of the decision.

HECOX V. LITTLE 33

important privacy interests and are not the equivalent of

athletic teams. 10

Appellants likewise misrely on a footnote in Geduldig v.

Aiello, 417 U.S. 484 (1974), for the proposition that a

legislative classification based on biological sex is not a

classification based on transgender status. See id. at 496

n.20. In Geduldig, the Supreme Court stated that a

classification based on pregnancy is not per se a

classification based on sex, even though “it is true that only

women can become pregnant.” Id. However, the Court held

that “distinctions involving pregnancy” that are “mere

pretexts designed to effect an invidious discrimination” are

subject to heightened scrutiny. Id. Here, it appears that the

definition of “biological sex” was designed precisely as a

pretext to exclude transgender women from women’s

athletics—a classification that Geduldig prohibits.

Finally, Appellants contend that the Act does not

discriminate based on transgender status because the “Act

does not prohibit biologically female athletes who identify

as male from competing on male sports teams consistent

with their gender identity.” But a law is not immune to an

equal protection challenge if it discriminates only against

some members of a protected class but not others. See, e.g.,

Rice v. Cayetano, 528 U.S. 495, 516–17 (2000) (“Simply

because a class . . . does not include all members of [a] race

does not suffice to make the classification race neutral.”);

Nyquist v. Mauclet, 432 U.S. 1, 7–9 (1977) (holding that

singling out some but not all undocumented immigrants for

discrimination constituted a “classification based on

alienage”); Mathews v. Lucas, 427 U.S. 495, 504 n.11 (1976)

10

For one, the functions of the bathroom are intended to be private,

unlike sporting events.

34 HECOX V. LITTLE

(“That the statutory classifications challenged here

discriminate among illegitimate children does not mean, of

course, that they are not also properly described as

discriminating between legitimate and illegitimate

children.”).

b. Heightened scrutiny applies because the Act

discriminates on the basis of transgender status.

We have previously held that heightened scrutiny applies

to laws that discriminate on the basis of transgender status,

reasoning that gender identity is at least a “quasi-suspect

class.” Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir.

2019).

In Karnoski, we reviewed an injunction against the

implementation of a 2017 Presidential Memorandum and

Departments of Defense and Homeland Security policies

that effectively precluded transgender individuals from

serving in the U.S. military. Id. at 1189. The district court

had applied strict scrutiny in enjoining the policy, while the

government argued that the policy should be reviewed under

a rational basis standard. Id. at 1200. We held that because

the implementing policy “on its face treats transgender

persons differently than other persons . . . something more

than rational basis but less than strict scrutiny applies.” Id.

at 1201. We therefore adopted the heightened scrutiny

approach of VMI and Witt v. Dep't of Air Force, 527 F.3d

806, 818 (9th Cir. 2008), to review the military’s ban on

transgender persons who experienced gender dysphoria or

who have undergone gender transition. 11 Id. We are thus

11

The Supreme Court determined in VMI that for “cases of official

classification based on gender” a reviewing court must apply a

“heightened review standard” and determine whether the state has

demonstrated an “exceedingly persuasive justification” for the

HECOX V. LITTLE 35

compelled to review the constitutionality of the Act under

heightened scrutiny as it classifies based on transgender

status.

Moreover, discrimination on the basis of transgender

status is a form of sex-based discrimination. It is well-

established that sex-based classifications are subject to

heightened scrutiny. See VMI, 518 U.S. at 533–34. The

Supreme Court recently held in the Title VII context that “it

is impossible to discriminate against a person for being . . .

transgender without discriminating against that individual

based on sex.” Bostock v. Clayton Cnty., Ga., 140 S. Ct.

1731, 1741 (2020). 12 Indeed, “[m]any courts . . . have held

that various forms of discrimination against transgender

individuals constitute sex-based discrimination for purposes

of the Equal Protection Clause because such policies punish

transgender persons for gender non-conformity, thereby

relying on sex stereotypes.” Grimm v. Gloucester Cnty. Sch.

Bd., 972 F.3d 586, 608 (4th Cir. 2020) (applying heightened

scrutiny to a bathroom policy); see also Whitaker By

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,

classification. 518 U.S. at 533–34. In Witt, we applied a “heightened

scrutiny” approach to the military’s “Don’t Ask, Don’t Tell” policy for

gay and lesbian servicemembers, determining that “when the

government attempts to intrude upon the personal and private lives of

homosexuals . . . the government must advance an important

governmental interest, the intrusion must significantly further that

interest, and the intrusion must be necessary to further that interest.” 527

F.3d at 819.

12

See also Nondiscrimination on the Basis of Sex in Education Programs

or Activities Receiving Federal Financial Assistance, 87 Fed. Reg.

41390, 41571 (proposed July 12, 2022) (to be codified at 34 C.F.R. pt.

106) (clarifying that “discrimination on the basis of sex” under Title IX

includes discrimination based on “sex stereotypes, sex characteristics . . .

and gender identity”).

36 HECOX V. LITTLE

858 F.3d 1034, 1051 (7th Cir. 2017), abrogated on other

grounds, Illinois Republican Party v. Pritzker, 972 F.3d 760

(7th Cir. 2020) (same); Brandt ex rel. Brandt v. Rutledge, 47

F.4th 661, 670–71 & n.4 (8th Cir. 2022) (applying

heightened scrutiny to affirm a preliminary injunction

against a law that prohibited “gender transition procedures”

because the law discriminated on the basis of sex); Eknes-

Tucker v. Marshall, 603 F. Supp. 3d 1131, 1147 (M.D. Ala.

2022) (applying heightened scrutiny to a law that prohibited

various medical treatments for gender dysphoria in

minors). 13

c. Heightened scrutiny applies because the Act

discriminates against all Idaho female student athletes.

In addition to discriminating on the basis of transgender

status, the Act discriminates on the basis of sex, because only

women and girls who want to compete on Idaho school

athletic teams, and not male athletes, are subject to the sex

dispute verification process. The Act expressly states that

only “[a]thletic teams or sports designated for females,

women, or girls shall not be open to students of the male

sex.” Idaho Code § 33-6203(2). The Act does not ban

“biological females” from “teams or sports designated for

males.” Therefore, transgender and cisgender men who

compete on male-designated teams are not subject to the sex

13

Both Idaho and the Intervenors note that the Eleventh Circuit

expressed “grave doubt” in a footnote in Adams that transgender people

constitute a “quasi-suspect class.” Adams, 57 F.4th at 803 n.5 (internal

quotation marks omitted). This dicta is unpersuasive, as the Eleventh

Circuit declined to decide the issue or further opine on its “doubts.” In

any event, as a three-judge panel we cannot overrule the binding

precedent of our circuit. See Miller v. Gammie, 335 F.3d 889, 899 (9th

Cir. 2003).

HECOX V. LITTLE 37

dispute verification process. The sex dispute verification

process simply does not apply to male athletes. 14

The Act thus classifies on the basis of sex by subjecting

only women and girls, whether cisgender or transgender, to

the risk and humiliation of having their sex “disputed” and

then suffering intrusive medical testing as a prerequisite for

participation on school sports teams. And where women and

girls are subject to separate requirements for educational

opportunities that are “unequal in tangible and intangible”

ways from those for men, those requirements are tested

under heightened scrutiny. VMI, 518 U.S. at 547.

2. The Act likely does not survive heightened scrutiny.

The district court correctly concluded that neither the

categorical ban nor sex dispute verification provisions likely

survive heightened scrutiny. Heightened scrutiny is a

“demanding” standard, with the burden “rest[ing] entirely on

the State” to demonstrate an “exceedingly persuasive”

justification for its differential treatment. VMI, 518 U.S. at

14

While the ban discriminates on the basis of transgender status, it is

important to discuss how it discriminates against all young women and

girls. The partial concurrence reads the sex dispute verification

provision as applicable to men and boys who wish to participate on

women and girls’ teams. But this contention disregards that, as the

concurrence itself elsewhere acknowledges, “[e]xisting rules already

prevented boys from playing on girls’ teams before the Act.” Partial

Concurrence at 66 (quoting Hecox, 479 F. Supp. 3d at 982). The record

is devoid of any evidence of “men and boys who wish to participate on

teams designated for women or girls,” id. at 72, in Idaho. However, if

they exist, male-identifying students who wish to play on girls’ teams

will never be subject to the sex dispute verification process, because they

are already banned from participation in women’s teams by virtue of

their identity under existing IHSSA policies. Only women and girls will

be subject to the degrading specter of having their sex disputed and

undergoing invasive and unnecessary medical testing.

38 HECOX V. LITTLE

533. To survive heightened scrutiny, the government must

demonstrate “that the [challenged] classification serves

important governmental objectives and that the

discriminatory means employed are substantially related to

the achievement of those objectives.” Id. at 516 (alteration

in original) (internal quotation marks and citations omitted).

Our review under heightened scrutiny is an extremely fact-

bound test, requiring us to “examine [a policy’s] actual

purposes and carefully consider the resulting inequality to

ensure our most fundamental institutions neither send nor

reinforce messages of stigma or second-class status.”

SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,

483 (9th Cir. 2014).

Appellants contend that, “[d]ue to the average

physiological differences” between men and women, the Act

substantially advances the important state interest of

“promot[ing] sex equality . . . by providing opportunities for

female athletes to demonstrate their skill, strength, and

athletic abilities [and] opportunities to obtain recognition

and accolades, college scholarships, and the numerous other

long-term benefits that flow from success in athletic

endeavors.” Idaho Code § 33-6202(12). We have

previously held that furthering women’s equality and

promoting fairness in female athletic teams is an important

state interest. Clark I, 695 F.2d at 1131. However, on the

record before us, the district court correctly determined that

the Act’s means—categorically banning transgender women

and girls from all female athletic teams and subjecting all

female athletes to intrusive sex verification procedures—are

not substantially related to, and in fact undermine, those

asserted objectives.

HECOX V. LITTLE 39

a. Clark I and Clark II do not control the outcome of

Lindsay’s claim.

Our decisions in Clark I and Clark ex rel. Clark v.

Arizona Interscholastic Ass'n, 886 F.2d 1191 (9th Cir. 1989)

(“Clark II”) are inapposite. In Clark I and Clark II, we held

that public high schools could constitutionally prohibit male

student athletes from participation on women’s teams in

order to further the important government interest of

“redressing past discrimination against women in athletics

and promoting equality of opportunity between the sexes.”

Clark I, 695 F.2d at 1131.

Specifically in Clark I, we held that an Arizona

Interscholastic Association policy that separated high school

volleyball teams by gender and prohibited boys from playing

on girls’ teams did not violate the Equal Protection Clause.

Clark I, 695 F.2d at 1127. There, Clark wished to play on

the girls’ volleyball team because his particular high school

did not offer boys’ volleyball teams. Id. We first recognized

that, in applying heightened scrutiny, “the Supreme Court is

willing to take into account actual differences between the

sexes, including physical ones.” Id. at 1229 (citing Michael

M. v. Sonoma Cnty. Superior Ct., 450 U.S. 464, 468–69

(1981) (upholding a statutory rape statute that held only

males culpable because only women can become pregnant,

thus furthering the government’s interest in preventing teen

pregnancy)). We concluded that general gender separation

in school sports was substantially related to the

government’s interest in women’s equality in athletics. Id.

at 1131. We reasoned that “due to average physiological

differences, males would displace females to a substantial

extent if they were allowed to compete for positions on the

volleyball team.” Id. Thus, if men were allowed to compete

on the women’s teams, women’s overall athletic

40 HECOX V. LITTLE

opportunities would decrease, while men’s overall athletic

opportunities would remain greater than women’s.

Eight years later, in Clark II, the original Clark I

plaintiff’s brother brought a second “mystifying” action

challenging the same policy, arguing that the state “ha[d]

been wholly deficient in its efforts to overcome the effects

of past discrimination against women in interscholastic

athletics, and that this failure vitiate[d] its justification for a

girls-only volleyball team.” Clark II, 886 F.2d at 1193.

Applying Clark I, we affirmed that the gender classification

for Arizona school sports was constitutional. Id. at 1194.

Appellants argue that “[t]he only difference between

Hecox and the Clark brothers is gender identity,” which does

not change the physiological advantages that “biological

males” have over cisgender women. But this is a false

assumption. First, Lindsay takes medically prescribed

hormone therapy to suppress her testosterone and raise her

estrogen levels. This treatment has lowered her circulating

testosterone levels—which impact athletic prowess and have

slowed her racing times by at least “five to ten percent”—

and her testosterone levels were “well below the levels

required to meet NCAA eligibility for cross country and

track” in Fall 2022, as the district court found. See Hecox,

479 F. Supp. 3d at 946. Lindsay’s treatment has dramatically

altered her bodily systems and secondary sex characteristics.

As the district court found, “it is not clear that transgender

women who suppress their testosterone have significant

physiological advantages over cisgender women,” unlike the

cisgender boys at issue in Clark I and Clark II. Id. at 978.

Second, as the district court noted, transgender women,

“like women generally . . . have historically been

discriminated against, not favored.” Id. at 977. A recent

HECOX V. LITTLE 41

study by the CDC concluded that “transgender students

reported significantly higher incidents of being bullied,

feeling unsafe traveling to or from school, being threatened

with a weapon at school, and being made to engage in

unwanted sexual relations.” Br. of Amici Curiae GLBTQ

Legal Advocates & Defenders and the National Center for

Lesbian Rights, at 9; see also Whitaker, 858 F.3d at 1051

(“There is no denying that transgender individuals face

discrimination, harassment, and violence because of their

gender identity.”). Unlike the policy in Clark I, the Act

perpetuates historic discrimination against both cisgender

and transgender women by categorically excluding

transgender women from athletic competition and subjecting

all women to an invasive sex dispute verification process.

Moreover, the district court correctly found that “under

the Act, women and girls who are transgender will not be

able to participate in any school sports, unlike the boys in

Clark I, who generally had equal [or greater] athletic

opportunities.” Hecox, 479 F. Supp. 3d at 977. Here, unlike

in Clark I, transgender women are not being denied one

“particular opportunity” to participate on women’s teams

even though their “overall opportunity is not inferior” to that

of women. Clark I, 695 F.2d at 1126. As a practical matter,

the Act bars transgender women and girls in Idaho from all

participation in student athletics—under its explicit terms,

they cannot play on teams that conform to their transgender

status. The argument advanced by Representative Ehardt

that the Act does not discriminate against transgender

women because they can still play on men’s teams is akin to

the argument we rejected in Latta, that same-sex marriage

bans do not discriminate against gay men because they are

free to marry someone of the opposite sex. See Latta, 771

F.3d at 467 (holding unconstitutional two marriage bans that

42 HECOX V. LITTLE

“distinguish on their face between opposite-sex couples who

are permitted to marry and whose out-of-state marriages are

recognized, and same-sex couples, who are not permitted to

marry and whose marriages are not recognized”). As

medical expert Dr. Jack Turban stated, “forcing [transgender

students] to play on a sports team that does not match their

gender identity would damage their mental health” by

“forcing them to express themselves as cisgender.” Lindsay

declared that she would never compete on a men’s team, as

it would be “embarrassing and painful to be forced onto a

team for men—like constantly wearing a big sign that says

‘this person is not a “real” woman.’”

The district court also found that, on the record before it,

“transgender women have not and could not ‘displace’

cisgender women in athletics ‘to a substantial extent.’”

Hecox, 479 F. Supp. 3d at 977 (quoting Clark I, 695 F.2d at

1131). Appellants misrely on a single line from Clark II to

argue that the participation of just one transgender woman

on a team risks displacing any individual cisgender woman:

“If males are permitted to displace females on the school

volleyball team even to the extent of one player like Clark,

the goal of equal participation by females in interscholastic

athletics is set back, not advanced.” Clark II, 886 F.2d at

1193. This statement, however, was made in response to the

argument in Clark II that because sex separation had not

fully met Arizona’s goal of equality of participation in

sports, Arizona no longer had an important interest in the

policy. We did not think Clark’s proposed remedy for the

inequality of opportunities for female athletes—allowing

him to play on the girls’ teams—would advance the “goal of

equal participation by females in interscholastic sports.” Id.

Because transgender women represent about 0.6 percent of

the general population, the district court did not err in finding

HECOX V. LITTLE 43

it unlikely that they would displace cisgender women from

women’s sports.

b. The categorical ban provision likely fails heightened

scrutiny.

Nor did the district court clearly err, see Doe v. Snyder,

28 F.4th 103, 106 (9th Cir. 2022), in finding that the Act’s

categorical ban provision failed heightened scrutiny because

it was not substantially related to its stated goals of equal

participation and opportunities for women athletes. The

district court found that the categorical ban provision did not

advance its asserted objectives for three reasons, none of

which were “illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.”

Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th

Cir. 2014) (citation omitted). Moreover, the Act’s sweeping

prohibition on transgender female athletes in Idaho—

encompassing all students, regardless of whether they have

gone through puberty or hormone therapy, and without any

evidence of transgender athletes displacing female athletes

in Idaho—is too overbroad to satisfy heightened scrutiny.

First, the district court found that there was scientifically

“no evidence to suggest a categorical bar against a

transgender female athlete’s participation in sports is

required in order to promote ‘sex equality’ or to ‘protect

athletic opportunities for females’ in Idaho.” Hecox, 479 F.

Supp. 3d at 978–79. Appellants argue that the district court

misread the available medical evidence, which they contend

demonstrates that endogenous testosterone levels give

“biological males” a permanent athletic advantage over

cisgender women. However, the district court did not err by

relying upon the testimony of a medical expert, Dr. Safer,

who testified that there was a medical consensus that the

44 HECOX V. LITTLE

“primary known driver of differences in athletic

performance between elite male athletes and elite female

athletes” is “the difference in [circulating] testosterone”

levels, as opposed to “endogenously produced” testosterone

levels, and “[a] person’s genetic make-up and internal and

external reproductive anatomy are not useful indicators of

athletic performance and have not been used in elite

competition for decades.” The district court credited Dr.

Safer’s opinion that a transgender woman who endured

hormone therapy to lower her circulating levels of

testosterone would likely not have different “physiological

characteristics” than a cisgender woman that would lead to

enhanced athletic prowess.

Appellants presented contrary medical testimony by Dr.

Gregory Brown that hormone therapy suppression did not

eliminate all of the physiological advantages that an

individual experiences through male puberty. However, as

the district court found, Dr. Brown’s opinion was not

supported by the studies he relied upon, because the majority

of the studies he cited discussed the average differences

between male and female athletes in general, not the

difference between transgender and cisgender women

athletes. And one study that he cited—the Handelsman

study—actually came to the opposite conclusion, concluding

that “evidence makes it highly likely that the sex difference

in circulating testosterone of adults explains most, if not all,

of the sex differences in sporting performance.”

The studies that the Idaho legislature relied upon to

conclude that the benefits of “natural testosterone” could not

be diminished through hormone therapy were likewise

flawed. For example, one of the studies was altered after

peer review to remove its conclusions regarding transgender

athletes, and, as Idaho admits, that “study and its findings

HECOX V. LITTLE 45

were not based specifically on transgender athletes.” The

legislature also relied on a study by Professor Coleman, who

personally urged Governor Little to veto the bill because the

legislature misinterpreted her work.

Moreover, as the district court found, the Act sweeps

much more broadly than simply excluding transgender

women who have gone through “endogenous puberty.” The

Act’s categorical ban includes transgender students who are

young girls in elementary school or even kindergarten.

Other transgender women take puberty blockers and never

experience endogenous puberty, yet the Act indiscriminately

bars them from participation in women’s student athletics,

regardless of their testosterone levels. Although the

scientific understanding of transgender women’s potential

physiological advantage is fast-evolving and somewhat

inconclusive, we are limited to reviewing the record before

the district court. And the record in this case does not

ineluctably lead to the conclusion that all transgender

women, including those like Lindsay who have gone through

hormone therapy, have a physiological advantage over

cisgender woman.

Second, as the district court found, there was very little

anecdotal evidence at the time of the Act’s passage that

transgender women had displaced or were displacing

cisgender women in sports or scholarships or like

opportunities. In 2020, both the IOC and the NCAA required

transgender women to suppress their testosterone for only a

year for eligibility to compete on women’s teams. 15 The

15

Although today the IOC and NCAA policies evaluate eligibility for

transgender participation in athletics on a sport-by-sport basis, neither

policy endorses the categorical exclusion of transgender women. They

instead favor an “evidence-based approach” with “no presumption of

46 HECOX V. LITTLE

record before the district court includes anecdotal evidence

of only four transgender athletes who had ever competed in

cisgender women’s sports, including two high school

runners who competed in Connecticut and were

subsequently defeated by cisgender women in competition.

While the Intervenors state they were defeated by a

transgender athlete, June Eastwood, in a running

competition at the University of Montana, Eastwood

eventually lost to a different cisgender athlete in that same

competition. Lindsay’s own athletic career belies the

contention that transgender women who have undergone

male puberty have an absolute advantage over cisgender

women: she has never qualified for BSU’s track team despite

trying out in Fall 2020.

There is likewise no evidence in the record of a

transgender woman receiving an athletic scholarship over a

advantage.” Int’l Olympics Comm., IOC Framework on Fairness,

Inclusion and Non-Discrimination on the Basis of Gender Identity and

Sex Variations 4 (2021),

https://stillmed.olympics.com/media/Documents/Beyond-the-

Games/Human-Rights/IOC-Framework-Fairness-Inclusion-Non-

discrimination-2021.pdf#page=4 (last visited June 6, 2023); see also

Nat’l Collegiate Athletics Ass’n, Transgender Student-Athlete

Participation Policy (April 17, 2023),

https://www.ncaa.org/sports/2022/1/27/transgender-participation-

policy.aspx (last visited May 24, 2023). And while the World Athletics

Council, the international governing body for track and field, recently

adopted a more stringent policy of categorically excluding post-

pubescent transgender women from elite athletic competitions, its policy

does not bar transgender women who have not experienced endogenous

puberty from eligibility. See Press Release, World Athletics Counsel,

World Athletics Council Decides on Russia, Belarus, and Female

Eligibility (Mar. 23, 2023), https://worldathletics.org/news/press-

releases/council-meeting-march-2023-russia-belarus-female-eligibility

(last visited May 24, 2023).

HECOX V. LITTLE 47

cisgender woman in Idaho. Moreover, as the district court

noted, the Act’s broad sweep—banning transgender

women’s participation not just in high school and college

athletics, but elementary school and club sports—“belies any

genuine concern with an impact on athletic scholarships,”

which are relevant to only a small portion of the competitive

teams encompassed by the Act. Hecox, 479 F. Supp. 3d at

983.

Of course, when applying heightened scrutiny, we “must

accord substantial deference to the predictive judgments” of

legislative bodies. Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 665 (1994). But this does not “insulate[]” predictive

judgments “from meaningful judicial review altogether.” Id.

at 666. “[U]nsupported legislative conclusions as to whether

particular policies will have societal effects of the sort at

issue in this case—determinations which often, as here,

implicate constitutional rights—have not been afforded

deference by the [Supreme] Court.” Latta, 771 F.3d at 469;

see also Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 784 (9th

Cir. 2014) (“[T]he absence of any credible showing that the

[challenged law] addressed a particularly acute problem”

was “quite relevant” to a showing that the law did not

survive heightened scrutiny.). A vague, unsubstantiated

concern that transgender women might one day dominate

women’s athletics is insufficient to satisfy heightened

scrutiny.

Third, the district court questioned the Act’s true

objectives, ruling that Idaho’s interest was not in “promoting

sex equality” but “excluding transgender women and girls

from women’s sports entirely.” Hecox, 469 F. Supp. 3d at

983. Before the Act’s passage, the existing NCAA and Idaho

state rules governed transgender women’s participation as

measured by circulating testosterone levels, and there was

48 HECOX V. LITTLE

no record evidence that transgender women and girls

threatened to dominate female student athletics. The record

indicates that Idaho may have wished “to convey a message

of disfavor” toward transgender women and girls, who are a

minority in this country. See Latta, 771 F.3d at 476. And

“[t]his is a message that Idaho . . . simply may not send”

through unjustifiable discrimination. 16 Id. at 476.

16

Other federal and state courts have enjoined transgender sports bans,

and no categorical ban has yet been upheld on appeal. See Doe v. Horne,

No. CV-23-00185-TUC-JGZ, 2023 WL 4661831, at *1 (D. Ariz. July 20,

2023) (granting a preliminary injunction against Arizona’s categorical

ban under the Equal Protection Clause and Title IX); A.M. by E.M. v.

Indianapolis Pub. Sch., 617 F. Supp. 3d 950, 969 (S.D. Ind. July 26,

2022), appeal dismissed, No. 22-2332, 2023 WL 371646, at *1 (7th Cir.

Jan. 19, 2023) (granting a preliminary injunction against transgender

participation in athletics under Title IX); Roe v. Utah High School

Activities Ass'n, No. 220903262, 2022 WL 3907182, at *1 (Utah Dist.

Ct. Aug. 19, 2022) (granting a preliminary injunction against a

categorical ban under the Utah Constitution’s equivalent of an equal

protection clause); see also Barrett v. State of Mont., No. DV-21-581B,

at *5–7 (Mont. Dist. Ct. Sept. 14, 2022) (granting summary judgment

against a categorical ban on the ground that only Montana public

university officials have the authority to regulate athletic competition in

public universities).

We note that in B. P. J. v. W. Va. State Bd. of Educ., 550 F. Supp. 3d

347 (S.D.W. Va. 2021), a district court enjoined West Virginia’s similar

categorical ban, finding that B.P.J., a twelve-year-old transgender girl

who wished to play middle school athletics, was likely to succeed on the

merits of her equal protection and Title IX claims. See id. at 353–57. In

January 2023, the district court reversed course and granted summary

judgment to the state, dissolving the injunction and holding that the

state’s definition of “biological sex” was “substantially related to athletic

performance and fairness in sports.” B. P. J. v. W. Va. State Bd. of Educ.,

No. 21-00316, 2023 WL 111875, at *8 (S.D.W. Va. Jan. 5, 2023). The

Fourth Circuit stayed the district court’s January order pending appeal,

and the Supreme Court denied the application to vacate that injunction.

HECOX V. LITTLE 49

We must “reject measures that classify unnecessarily and

overbroadly by gender when more accurate and impartial

lines can be drawn.” Sessions v. Morales-Santana, 137 582

U.S. 47, 63 n.13 (2017). While the Act purports to further

athletic opportunities for Idaho’s female students, the district

court correctly concluded that the Act does not further this

goal, and in fact “appears unrelated to the interests the Act

purportedly advances.” Hecox, 470 F. Supp. 3d at 979. And

“[i]ntentional discrimination on the basis of gender by state

action violates the Equal Protection Clause[] where, as here,

the discrimination serves to ratify and perpetuate invidious,

archaic, and overbroad stereotypes.” J.E.B. v. Alabama ex

rel. T.B., 511 U.S. 127, 131 (1994). Thus, we need not and

do not decide what policy would justify the exclusion of

transgender women and girls from Idaho athletics under the

Equal Protection Clause, because the total lack of means-end

fit here demonstrates that the Act likely does not survive

heightened scrutiny.

c. The sex dispute verification provision likely fails

heightened scrutiny.

The district court also correctly concluded that the sex

verification provision likely failed heightened scrutiny

because Idaho failed to demonstrate an “exceedingly

persuasive justification,” VMI, 518 U.S. at 534, for

subjecting only young women and girls to the humiliating

and intrusive burden of the sex verification process. 17

See W. Va. v. B. P. J., by Jackson, 143 S. Ct. 889 (2023). As of this

writing, transgender girls such as B. P. J. may participate in West

Virginia school athletics.

17

Idaho contends that we should dismiss the challenge to the sex dispute

verification provision of the Act, because the district court primarily

analyzed the provision’s constitutionality as to Jane’s claim, which the

50 HECOX V. LITTLE

Under the Act, anyone—be it a teammate, coach, parent,

or a member of an opposing team—may “dispute” a player’s

“biological sex,” requiring that player to visit her “personal

health care provider . . . [who will] verify the student’s

biological sex” through the player’s “reproductive anatomy,

genetic makeup, or normal endogenously produced

testosterone levels.” Idaho Code § 33-6203(3). The Act’s

express terms limit the verification procedure to a “routine

sports physical examination” by “relying only on one (1) or

more of the following: the student’s reproductive anatomy,

genetic makeup, or normal endogenously produced

testosterone levels.” Id. (emphasis added). By its plain text,

the Act provides that a student’s sex can be verified

exclusively by these three enumerated methods. Thus, the

district court was not unreasonable in finding incredulous

parties have stipulated is now moot. However, Lindsay brought the same

constitutional challenges to the sex dispute verification provision as Jane

did in her complaint, and argued in her motion for preliminary injunction

that she also would be subjected to the sex dispute verification process.

Indeed, Appellants recognized that Lindsay challenged the sex dispute

verification provision when they argued in front of the district court that

“Lindsay [could not] establish an injury in fact because the State Board

of Education ha[d] not yet promulgated regulations governing third-

party sex verification disputes,” Hecox, 469 F. Supp. 3d at 962, and that

Lindsay would not have to go through the sex dispute process because

her “health care provider [could] simply sign[] an ‘other statement’

stating that Lindsay is female.” Id. at 964.

The district court reviewed these arguments and concluded that

Lindsay had standing to challenge the sex dispute verification provision,

because “it is not speculative to suggest Lindsay’s sex would be

disputed.” Id. at 961. The court then held that the sex dispute

verification provision likely did not survive heightened scrutiny because

of the “injury and indignity inflicted on Jane and all other female

athletes,” which includes Lindsay. Id. at 987. Thus, we decline to

dismiss the challenge to the sex dispute verification provision.

HECOX V. LITTLE 51

defense counsel’s argument that the Act merely required

Lindsay to obtain a letter from her doctor stating that

Lindsay “is female.” Hecox, 469 F. Supp. 3d at 983. If that

was all that was required to verify a student’s sex under the

Act, Lindsay could simply obtain such a statement and the

Act (and this appeal) would be rendered meaningless.

Any one of the three exclusive procedures requires far

more than a “routine sports physical” exam or simply asking

whether a patient is female or not. As Lindsay’s medical

expert Dr. Sara Swobada described, analyzing a student’s

“genetic makeup” would require referral to a “pediatric

endocrinologist” who would conduct a “chromosomal

microarray” that would reveal a “range of genetic

conditions” beyond sex chromosomes. Hormone testing

would also require a “pediatric endocrinologist,” and is not

a “routine part of any medical evaluation.” Of course, the

expense and burden of these tests would be borne only by

female students and their families.

Requiring a student to find a medical practitioner to

examine their reproductive anatomy, which is what a typical

gynecological exam entails, is unconscionably invasive,

with the potential to traumatize young girls and women. As

Dr. Swobada opined, examining a female patient’s

“reproductive anatomy” would necessitate inspecting a

student athlete’s genitalia and conducting a pelvic

examination or transvaginal ultrasound to determine

whether that student has ovaries. She further explained that

pelvic examinations for young patients are generally not

required for minors, including adolescents, and are only

conducted when medically necessary “with sedation and

appropriate comfort measures to limit psychological

trauma.” Yet the Act’s sex verification process subjects girls

as young as elementary schoolers to unnecessary

52 HECOX V. LITTLE

gynecological examinations merely because an individual

“disputes” their sex.

The psychological burden of these searches does not just

fall on transgender women like Lindsay, but on all women

and girls. As amici describe, “[s]ex verification procedures

have a long, checkered history in female sports that continue

to this day.” Br. of Amici Curiae National Women’s Law

Center, et al. at 15. In the 1960s, the IOC would force female

athletes to strip and parade in front of a panel of doctors to

prove that they were, in fact, women. Id. The process was

discontinued after a public outcry. Id. One intersex athlete

who failed a sex verification procedure described being “so

‘tormented’ and ‘unbearably embarrassed’ that ‘she

attempted suicide’ by ‘swallowing poison.’” Id. at 17

(quoting Ruth Padawer, The Humiliating Practice of Sex-

Testing Female Athletes, N.Y. Times Magazine (June 28,

2016)). Tellingly, while many athletic organizations have

tightened their rules for transgender women’s competition

since 2020, none appears to have instituted a process that

required gynecological examinations or invasive physical

examinations. 18 Of the twenty other states that have passed

restrictions on transgender women’s participation in

women’s sports, none has authorized a similar sex

verification process. 19

18

The IOC has expressly disavowed invasive sex verification

procedures, stating that “[c]riteria to determine eligibility for a gender

category should not include gynecological examinations or similar forms

of invasive physical examinations, aimed at determining an athlete’s sex,

sex variations or gender.” See Int’l Olympic Comm., supra, at 5.

19

Most states that have instituted categorical bans on transgender

participation in student athletics have verified sex via a student’s birth

certificate. Oklahoma and Kentucky require a student or a student’s

HECOX V. LITTLE 53

Idaho has not offered any “exceedingly persuasive

justification” warranting the imposition of this objectively

degrading and disturbing process on young women and girls.

Before the Act’s passage, Idaho had no sex verification

process in place and nonetheless separated teams by gender.

The record is devoid of evidence that any boy attempted to

join a girls’ team. By the plain text of the Act, the purpose

of the sex verification process is to identify and exclude

transgender women and girls from women’s athletics in

Idaho. And a “bare . . . desire to harm a politically unpopular

group cannot constitute a legitimate governmental interest.”

Romer v. Evans, 517 U.S. 620, 634 (1996) (alteration in

original) (citation omitted).

We agree with the district court that, contrary to the Act’s

express purpose of ensuring women’s equality and

opportunities in sports, the sex dispute verification process

likely will discourage the participation of Idaho female

students in student athletics by allowing any person to

dispute their gender and then subjecting them to unnecessary

medical testing and genital inspections. Because the Act’s

means undermine its purported objectives and impose an

unjustifiable burden on all female athletes in Idaho, the

district court did not abuse its discretion by finding that the

sex verification provision likely would not survive

heightened scrutiny.

B. Irreparable Harm

The district court properly concluded that Lindsay faced

irreparable harm absent an injunction. “It is well established

parent or legal guardian submit sworn affidavits to confirm their

“biological sex.” See Okla. Stat. Ann. tit. 70, § 27-106(D); Ky. Rev. Stat.

Ann. § 164.2813(2).

54 HECOX V. LITTLE

that the deprivation of constitutional rights unquestionably

constitutes irreparable injury.” Hernandez v. Sessions, 872

F.3d 976, 994 (9th Cir. 2017) (internal quotation marks and

citation omitted). Therefore, as the Act is likely

unconstitutional, “it follows inexorably . . . that [Hecox]

ha[s] [] carried [her] burden as to irreparable harm.” Id. at

995.

More concretely, if the preliminary injunction is lifted,

Lindsay will be barred from trying out for or participating on

any female sports teams at BSU, including the women’s club

soccer team, which she joined to improve her running skills

and to experience “the camaraderie of being on a team.” See

Idaho Code § 33-6203(3). While Lindsay did not make the

track team in Fall 2020, the Act would bar her from trying

out for the team in Fall 2023, her last opportunity to play

NCAA sports. Lindsay would also be subject to the threat

of the sex dispute verification process and unnecessary

examinations or medical testing. These are all specific

“harm[s] for which there is no adequate legal remedy” in the

absence of an injunction. Ariz. Dream Act Coal. v. Brewer,

757 F.3d 1053, 1068 (9th Cir. 2014).

C. Balance of the Equities & Public Interest

The district court also did not err in concluding that the

balance of the equities weighed in favor of a preliminary

injunction. When the government is a party to a lawsuit, the

balance of the equities and public interest prongs of the

preliminary injunction test merge, because government

actions presumably are in the public interest. See Drakes

Bay Oyster Co., 747 F.3d at 1092; Nken v. Holder, 556 U.S.

418, 435 (2009) (holding that “courts must be mindful that

the Government’s role as the respondent in every removal

proceeding does not make the public interest in each

HECOX V. LITTLE 55

individual one negligible”). Here, Lindsay faces deeply

personal, irreparable harms without injunctive relief,

including being barred from all female college athletic teams

and the prospect of invasive medical testing if her gender is

“disputed.”

A preliminary injunction does not appear to inflict any

comparable harm to the Appellants, as the injunction

expressly maintained the status quo. Under the status quo,

the NCAA policies for college athletics and the IHSAA

policies for high school athletics govern transgender female

participation in sports, and Idaho schools have complied

with those policies for over a decade. The district court

found no “evidence that transgender women threatened

equality in sports, girls’ athletic opportunities, or girls’

access to scholarships in Idaho” during that decade, and thus

Appellants failed to demonstrate any harm from issuance of

the injunction. Hecox, 469 F. Supp. 3d at 988. Moreover, as

the district court found, Intervenors themselves may also be

harmed by the sex dispute verification process, to which they

are subject simply by virtue of playing sports in Idaho.

Because “the public interest and the balance of the equities

favor preven[ting] the violation of a party’s constitutional

rights,” Ariz. Dream Act, 757 F.3d at 1060 (alteration in

original) (internal quotation marks and citation omitted), we

affirm that the district court did not abuse its discretion in

weighing this factor.

IV. SCOPE OF THE INJUNCTION

Finally, we reject Intervenors’ argument that the scope of

the injunction is improper as a matter of law. “A district

court has considerable discretion in fashioning suitable relief

and defining the terms of an injunction,” and “[a]ppellate

review of those terms ‘is correspondingly narrow.’” Lamb-

56 HECOX V. LITTLE

Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th

Cir. 1991) (quoting Coca–Cola Co. v. Overland, Inc., 692

F.2d 1250, 1256 n.16 (9th Cir.1982)). However, injunctive

relief “must be tailored to remedy the specific harm alleged,”

and “[a]n overbroad injunction is an abuse of discretion.” Id.

(finding that a worldwide injunction to protect a trade secret

was not an abuse of discretion). Under Federal Rule of Civil

Procedure Rule 65(d), “[e]very order granting an injunction

. . . must: (A) state the reasons why it issued; (B) state its

terms specifically; and (C) describe in reasonable detail—

and not by referring to the complaint or other document—

the act or acts restrained or required.” However,

“injunctions are not set aside under [R]ule 65(d) [] unless

they are so vague that they have no reasonably specific

meaning.” United States v. Holtzman, 762 F.2d 720, 726 (9th

Cir. 1985).

Here, the scope of the injunction is clear: The district

court enjoined the enforcement of any of the provisions of

the Act. 20 The district court explicitly held that the

injunction would restore the pre-Act status quo, such that the

“NCAA policy for college athletes and IHSAA policy for

high school athletes” would remain in effect. Hecox, 479 F.

Supp. 3d at 988. Nor did the district court abuse its

discretion as to the scope of the injunction. It concluded that

20

The partial concurrence states that it is unclear whether the Court was

“enjoining all provisions of the Act or only some of them.” Partial

Concurrence at 81. However, the district court granted the motion for

preliminary injunction in full, see Hecox, 479 F. Supp. 3d at 989, and the

motion asked the district court to enjoin “enforc[ement of] any of the

provisions of” the Act. It does not appear from the record that either

party argued that the injunction should apply to only certain provisions

of the Act. Thus, no genuine confusion exists regarding whether the

entirety of the Act is enjoined.

HECOX V. LITTLE 57

the Act was likely “unconstitutional as currently written,”

id., and properly enjoined enforcement of the Act in its

entirety. 21 That Lindsay’s case involves an as-applied

21

The partial concurrence argues that we should remand this case to the

district court to tailor the injunction to provide the specificity that Rule

65(d)(1) requires because it is unclear whether the injunction is limited

to “transgender women and girls who either have never undergone

puberty or have suppressed their testosterone levels through hormone

therapy.” Partial Concurrence at 82. The concurrence also suggests that

the scope of the injunction is overbroad because it might “appl[y] to

transgender female athletes” who have gone through puberty and have

not received hormone therapy. Id. at 83. However, the district court

explicitly preserved the “status quo” in Idaho when fashioning the

injunction, stating:

[A] preliminary injunction would not harm Defendants

because it would merely maintain the status quo while

Plaintiffs pursue their claims. If an injunction is issued,

Defendants can continue to rely on the NCAA policy for

college athletes and IHSSA policy for high school athletes, as

they did for nearly a decade prior to the Act . . . [N]either

Defendants nor the Intervenors would be harmed by returning

to this status quo.

Hecox, 479 F. Supp. 3d at 988. At the time of the injunction, both

policies allowed transgender women and girls “to compete on girls’

teams after completing one year of hormone therapy suppressing

testosterone under the care of a physician.” Id. at 947. Thus, the district

court specifically stated how the injunction would apply to transgender

female athletes who have gone through puberty and not received

hormone therapy: those individuals would be required to conform to

current NCAA and IHSSA policies circumscribing the extent of their

participation in female athletics.

In any event, there is no evidence that Idaho believes the terms of the

injunction “have no reasonably specific meaning.” Holtzman, 762 F.2d

at 726. To the contrary, only Intervenors, not Idaho, argued on appeal

that the injunction was vague and overbroad, indicating that Idaho school

administrators have clearly understood over the past three years what

conduct is permissible under the injunction.

58 HECOX V. LITTLE

challenge does not undermine the district court’s findings

that the Act is unconstitutional as applied to all women. See,

e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010)

(holding that a challenge to a category of applications of a

statute may be characterized as an as-applied challenge). 22

V.

While we address only the Act before us, and opine on

no other regulation or policy, we must observe that both the

science and the regulatory framework surrounding issues of

transgender women’s participation in female-designated

sports is rapidly evolving. Since Lindsay filed her initial

challenge, the IOC and NCAA have adopted more limited

policies as to transgender female participation in women’s

sports, requiring the governing entities for each sport to

formulate sport-specific policies. Relying on medical

22

Intervenors, but not Idaho, contend that the injunction is overbroad

because it extends to non-plaintiffs in light of the district court’s

dismissal of Lindsay’s facial challenge. However, in Doe, the Supreme

Court explained that an as-applied claim could be “‘facial’ in that it is

not limited to plaintiffs’ particular case, but challenges application of the

law more broadly.” Doe, 561 U.S. at 194. Because the district court

found that the Act harmed “the constitutional rights of every girl and

woman athlete in Idaho,” Hecox, at 479 F. Supp. 3d at 988, it did not

abuse its discretion in issuing a preliminary injunction against the entire

category of applications of the Act.

In addition, as the partial concurrence persuasively argues, the district

court could not accord Lindsay full relief without enjoining the Act in its

entirety consistent with the principle that “an injunction ‘should be no

more burdensome to the defendant than necessary to provide complete

relief to the plaintiffs before the court.’” City & County of San Francisco

v. Barr, 965 F.3d 753, 765 (9th Cir. 2020) (quoting L.A. Haven Hospice,

Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011)); see also E. Bay

Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021) (en

banc); Doe #1 v. Trump, 957 F.3d 1050, 1069 (9th Cir. 2020).

HECOX V. LITTLE 59

evidence, many sports organizations have tightened their

eligibility criteria for transgender women’s teams, including

incorporating guidelines for lower testosterone levels for

eligibility to compete. 23 The U.S. Department of Education

has proposed new Title IX regulations addressing

restrictions on transgender athletes’ eligibility that would

require “such criteria” to “be substantially related to the

achievement of an important educational objective and

minimize harms to students whose opportunity to participate

on a male or female team consistent with their gender

identity would be limited or denied.” 24 These more narrowly

drawn policies, which are not before us, attempt to balance

transgender inclusion with competitive fairness—a policy

question that such regulatory bodies are best equipped to

address.

23

See, e.g., USA Swimming, USA Swimming Releases Athlete Inclusion,

Competitive Equity and Eligibility Policy (Feb. 1, 2022),

https://tinyurl.com/mr2k4tvp (announcing a policy for USA Swimming

that elite transgender women athletes must show testosterone levels

below 5 nmol/L continuously for at least 36 months); Bicycling, The UCI

Announces Changes to Its Policy on Transgender Athletes (June 17,

2022), https://www.bicycling.com/news/a40320907/uci-transgender-

policy-2022/ (announcing a testosterone limit of 2.5 nmol/L for elite

bicyclists (halved from the previous 5.0 nmol/L) for a suppression period

of 24 months); Olalla Cernuda, World Triathlon Executive Board

approves Transgender Policy, World Triathlon (Aug. 3, 2022),

https://tinyurl.com/yxw4syzw (requiring below a 2.5 nmol/L

testosterone level for 24 months for triathletes).

24

Nondiscrimination on the Basis of Sex in Education Programs or

Activities Receiving Federal Financial Assistance: Sex-Related

Eligibility Criteria for Male and Female Athletic Teams, 88 Fed. Reg.

22860 (proposed April 13, 2023) (to be codified at 34 C.F.R. pt. 106).

60 HECOX V. LITTLE

VI. CONCLUSION

We recognize that, after decades of women being denied

opportunities to meaningfully participate in athletics in this

country, many cisgender women athletes reasonably fear

being shut out of competition because of transgender athletes

who “retain an insurmountable athletic advantage over

cisgender women.” See Br. of Amici Curiae Sandra Bucha,

et al. at 8. We also recognize that athletic participation

confers to students not just an opportunity to win

championships and scholarships, but also the benefits of

shared community, teamwork, leadership, and discipline.

See generally Br. of Amici Curiae 176 Athletes in Women’s

Sports (describing the benefits of sports, and diversity in

women’s sports, on all students). Excluding transgender

youth from sports necessarily means that some transgender

youth will be denied those educational benefits.

However, we need not and do not decide the larger

question of whether any restriction on transgender

participation in sports violates equal protection. Heightened

scrutiny analysis is an extraordinarily fact-bound test, and

today we simply decide the narrow question of whether the

district court, on the record before it, abused its discretion in

finding that Lindsay was likely to succeed on the merits of

her equal protection claim. Because it did not, we affirm the

entry of preliminary injunctive relief against the Act’s

enforcement.

AFFIRMED.

HECOX V. LITTLE 61

CHRISTEN, Circuit Judge, concurring in part and

dissenting in part:

The Fairness in Women’s Sports Act, 2020 Idaho Sess.

Laws 967–70 (codified at Idaho Code §§ 33-6201⁠–06) (the

“Act”), declares that “[a]thletic teams or sports designated

for females, women, or girls shall not be open to students of

the male sex.” Idaho Code § 33-6203(2). The Act considers

transgender women and girls to be “students of the male

sex.” Accordingly, the Act bans all transgender women and

girls from competing in school sports in Idaho on teams that

are consistent with their gender identities. The ban applies

broadly to all public schools, from kindergarten through

college, and to all private schools and colleges whose

students or teams compete against public schools or

colleges. Id. § 33-6203(1). The ban also applies to all kinds

of sports, to all grades and ages, and to all types of

competition. And the ban extends to all transgender women

and girls, including those who are too young to have

experienced puberty, those whose use of puberty blockers

prevented them from ever going through puberty, and those

who have undergone a year or more of hormone therapy to

suppress their levels of circulating testosterone. To enforce

the ban, the Act permits any individual to “dispute” the sex

of any athlete participating in women’s or girls’ sports. Id.

§ 33-6203(3). If a student’s sex is disputed, the statute

requires the student to have her health care provider “verify”

her “biological sex.” Id. To provide the necessary

verification, the health care provider may rely “only on one

(1) or more of the following: the student’s reproductive

anatomy, genetic makeup, or normal endogenously produced

testosterone levels.” Id.

Lindsay Hecox, a student at Boise State University who

wants to participate in her college’s women’s track team,

62 HECOX V. LITTLE

claims that the Act violates her statutory and constitutional

rights, including her Fourteenth Amendment right to equal

protection of the laws. Lindsay is a transgender woman who

undergoes gender-affirming hormone therapy that reduces

her testosterone levels. She would have been eligible to

participate in women’s sports in Idaho under the policies in

place before the Act was adopted, but she is prevented from

doing so under the Act.

In August 2020, the district court granted Lindsay’s

motion to preliminarily enjoin enforcement of the Act

pending trial on the merits of her claims. The court entered

extensive findings and ruled that Lindsay was likely to

succeed on her equal protection claim. Hecox v. Little

(Hecox I), 479 F. Supp. 3d 930 (D. Idaho 2020). In doing

so, the court reasoned that the Act is not substantially related

to the State’s important interests in promoting sex equality

and providing athletic opportunities for women, because the

Act bans transgender women and girls categorically, rather

than focusing on those transgender women and girls who, by

virtue of their testosterone levels, have real athletic

advantages over other women and girls. The court also

reasoned that the Act’s dispute and sex verification provision

was likely to hinder, rather than further, the State’s important

interests “by subjecting women and girls to unequal

treatment, excluding some from participating in sports at all,

incentivizing harassment and exclusionary behavior, and

authorizing invasive bodily examinations.” Id. at 987.

Like the majority, I conclude that the district court did

not abuse its discretion by granting preliminary injunctive

relief. The district court carefully considered the evidence

and made findings amply supported by the record. Given

our limited and deferential review at this stage of the

litigation, the categorical sweep of the ban on transgender

HECOX V. LITTLE 63

students, the medical consensus that circulating testosterone

rather than transgender status is an accurate proxy for

athletic performance, and the unusual and extreme nature of

the Act’s sex verification requirements, the district court did

not abuse its discretion by concluding that Lindsay was

likely to succeed on her equal protection claim.

I also agree with the majority that the district court did

not abuse its discretion by enjoining enforcement of the

statute against non-plaintiffs. Given the partially facial

nature of Lindsay’s claims and the Supreme Court’s

discussion of this subject in John Doe No. 1 v. Reed, 561

U.S. 186 (2010), I conclude that the district court acted

within its broad discretion.

Although I agree with much of the majority opinion, I

respectfully disagree with the majority in certain respects.

First, I disagree with the majority’s conclusion that “only

women and girls who want to compete on Idaho school

athletic teams, and not male athletes, are subject to the sex

dispute verification process.” Maj. Op. at 36. I read the

verification provision to apply to any student, male or

female, who participates on women’s or girls’ athletic teams.

The verification provision does not apply to any student,

male or female, who participates on men’s or boys’ athletic

teams. Accordingly, I conclude that it is the team an athlete

chooses to join that dictates whether they are subject to the

statute’s verification process, not the athlete’s sex. In my

view, the majority errs in holding otherwise.

Second, I disagree with the majority’s conclusion that the

preliminary injunction satisfies the specificity requirements

set out in Federal Rule of Civil Procedure 65(d)(1). The

injunction does not “state its terms specifically” or “describe

in reasonable detail . . . the . . . acts restrained or required.”

64 HECOX V. LITTLE

Finally, I disagree with the majority’s conclusion that the

district court properly “tailor[ed] the scope of the remedy to

fit the nature and extent of the constitutional violation.” City

& County of San Francisco v. Trump, 897 F.3d 1225, 1244

(9th Cir. 2018) (quoting Hills v. Gautreaux, 425 U.S. 284,

293–94 (1976)). The district court appears to have enjoined

§ 33-6203(2) as applied to all transgender female athletes.

But the court made no findings suggesting that § 33-6203(2)

is unconstitutional as applied to transgender women and girls

who have gone through puberty and have not received

hormone therapy to suppress testosterone. Given the court’s

finding that the medical consensus treats circulating

testosterone as the key factor in determining differences in

athletic performance, the injunction is not appropriately

tailored.

For these reasons, I would affirm the district court’s

order in part, vacate it in part, and remand. I therefore concur

in part, and respectfully dissent in part, from the court’s

judgment.

I. Interpreting § 33-6203(3)

Although the majority does not directly address the

issue, I note that the parties interpret the Act’s sex

verification provision differently. Idaho Code § 33-6203(3)

states:

A dispute regarding a student’s sex shall be

resolved by the school or institution by

requesting that the student provide a health

examination and consent form or other

statement signed by the student’s personal

health care provider that shall verify the

student’s biological sex. The health care

HECOX V. LITTLE 65

provider may verify the student’s biological

sex as part of a routine sports physical

examination relying only on one (1) or more

of the following: the student’s reproductive

anatomy, genetic makeup, or normal

endogenously produced testosterone levels.

Id. (emphasis added).

Appellants assert that a health care provider may verify

a student’s biological sex through any means, not only

through the three means enumerated in the statute

(reproductive anatomy, genetic makeup, and normal

endogenously produced testosterone levels). The State

argues:

The statute provides three separate options to

verify sex. The first two options, (1) a health

examination and consent form or (2) other

statement signed by the student’s personal

health care provider, are not subject to the

three criteria mentioned in the third option,

the “routine sports physical examination.”

They are different means, and listed in a

completely different sentence. Moreover, the

separate, third option, a “routine sports

physical examination,” makes clear that it is

permissive, not required, using the term

“may.”

State’s Opening Brief at 38. Lindsay, by contrast, argues that

because the statute specifies that providers may rely “only

on one (1) or more of the following,” it plainly limits health

66 HECOX V. LITTLE

care providers to using one of the three means enumerated

in the statute.

I agree with Lindsay. Boiled down, the State interprets

the statute to mean that a health care provider may verify a

student’s sex by: (1) a routine sports physical examination

relying on one or more of the enumerated means; or (2) any

“other statement” relying on any means at all. The State’s

reading sharply diverges from the language adopted by the

legislature and renders the provision’s second sentence

inoperative. The State argues that the district court failed to

apply Idaho’s principles of statutory interpretation, see

State’s Opening Brief at 37, but notably fails to identify any

support for its anti-textual interpretation, from Idaho or

elsewhere. Because the second sentence becomes a dead

letter under the State’s interpretation, the statute is not

reasonably susceptible to the interpretation offered by the

State. See State v. Yzaguirre, 163 P.3d 1183, 1190 (Idaho

2007) (“In interpreting statutory language, all the words of

the statute must be given effect if possible, and the statute

must be construed as a whole.”).

II. Intermediate Scrutiny Applies Because the Act

Discriminates Based on Transgender Status

I agree with the majority, and with the district court, that

intermediate scrutiny applies.

Before the passage of the Act, Idaho prohibited “men and

boys” from participating on teams designated for women and

girls. As the district court pointed out, “general sex

separation on athletic teams for men and women . . .

preexisted the Act and has long been the status quo in Idaho.

Existing rules already prevented boys from playing on girls’

teams before the Act.” Hecox I, 479 F. Supp. 3d at 982.

However, Idaho’s pre-Act status quo allowed transgender

HECOX V. LITTLE 67

women and girls (i.e., athletes assigned male at birth who

identify as female) to participate in women’s and girls’ sports

consistent with Idaho High School Activities Association

(IHSAA) and National Collegiate Athletic Association

(NCAA) policies. To be eligible, these students had to

provide proof that they had undergone at least one year of

hormone therapy to suppress their testosterone levels.

Hence, although the Act is couched in terms that suggest it

classifies student athletes according to their “biological sex,”

Idaho Code § 33-6203(1), (3), and purports to preclude

students of the “male sex” from participating in women’s

and girls’ sports, the ban in fact serves only to prohibit

transgender women and girls from women’s and girls’ sports

teams. The ban’s exclusive function is to abrogate the

IHSAA and NCAA policies allowing transgender women

and girls, under limited circumstances, to participate in

women’s and girls’ sports. 1

Under these circumstances, that the Act speaks in terms

of “biological sex,” rather than “transgender status” or

“gender identity,” is not controlling. The Act changed the

status quo by classifying athletes, for the first time, based on

transgender status. The conclusion that the Act classifies

based on transgender status finds extensive support in

1

The principal section of the statute, Idaho Code § 33-6203, comprises

three subsections. They are all integral parts of the statutory plan to

exclude transgender women and girls from women’s and girls’ sports.

Section 33-6203(2) effects a ban, or prohibition, on transgender athletes

participating in sports designated for women or girls. Section 33-

6203(3), the sex verification provision, is the enforcement mechanism

for the ban. Section 33-6203(2) operates exclusively against transgender

female athletes for the reasons explained in the text. But any student—

male or female, transgender or cisgender—who participates in sports

designated for women or girls is subject to the verification provision in

§ 33-6203(3)).

68 HECOX V. LITTLE

controlling case law. In Personnel Administrator of

Massachusetts v. Feeney, 442 U.S. 256 (1979), the Supreme

Court recognized that a statute may classify covertly as well

as overtly:

When a statute gender-neutral on its face is

challenged on the ground that its effects upon

women are disproportionably adverse, a

twofold inquiry is thus appropriate. The first

question is whether the statutory

classification is indeed neutral in the sense

that it is not gender-based. If the

classification itself, covert or overt, is not

based upon gender, the second question is

whether the adverse effect reflects invidious

gender-based discrimination.

Id. at 274. Under Feeney, a statute that is gender-neutral on

its face nevertheless classifies based on gender if the

statutory classification “can plausibly be explained only as a

gender-based classification.” Id. at 275. 2 In Latta v. Otter,

771 F.3d 456 (9th Cir. 2014), for example, we held that laws

defining marriage as a relationship “between a man and a

woman,” id. at 464 n.2, but making no mention of sexual

orientation, nevertheless “distinguish[ed] on their face

between opposite-sex couples, who are permitted to marry

and whose out-of-state marriages are recognized, and same-

sex couples, who are not permitted to marry and whose

2

I do not conclude that the ban is a transgender-based classification

because it has a disproportionate adverse impact on transgender women

and girls. The Supreme Court has made clear that disproportionate

impact alone does not trigger heightened scrutiny under the Equal

Protection Clause. See Washington v. Davis, 426 U.S. 229, 242 (1976).

HECOX V. LITTLE 69

marriages are not recognized.” Id. at 467. The defendants

could not “overcome the inescapable conclusion” that the

laws “discriminate[d] on the basis of sexual orientation.” Id.

at 468. We applied the same reasoning in Pacific Shores

Properties, LLC v. City of Newport Beach, 730 F.3d 1142

(9th Cir. 2013), a Fair Housing Act case, where we

explained:

Proxy discrimination is a form of facial

discrimination. It arises when the defendant

enacts a law or policy that treats individuals

differently on the basis of seemingly neutral

criteria that are so closely associated with the

disfavored group that discrimination on the

basis of such criteria is, constructively, facial

discrimination against the disfavored group.

For example, discriminating against

individuals with gray hair is a proxy for age

discrimination because “the ‘fit’ between age

and gray hair is sufficiently close.”

McWright v. Alexander, 982 F.2d 222, 228

(7th Cir. 1992).

Id. at 1160 n.23; cf. Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 270 (1993) (42 U.S.C. § 1985(3)) (“A

tax on wearing yarmulkes is a tax on Jews.”); McWright, 982

F.2d at 228 (Rehabilitation Act) (“We have warned that an

employer cannot be permitted to use a technically neutral

classification as a proxy to evade the prohibition of

intentional discrimination.”).

Given the Act’s context, these authorities support the

conclusion that the Act classifies based on transgender

status. As in Feeney, the Act can only be understood as a

70 HECOX V. LITTLE

transgender-based classification. As in Latta, the Act

distinguishes on its face between cisgender women and girls,

who can compete on teams consistent with their gender

identity, and transgender women and girls, who are

categorically barred from doing so. The Act “use[s] a

technically neutral classification”—biological sex—“as a

proxy to evade the prohibition of intentional

discrimination.” McWright, 982 F.2d at 228. Indeed,

transgender women and girls are the only students who are

actually affected by the Act’s classification; they are the only

group banned from participating on athletic teams that are

aligned with their gender identities. 3

3

Under the Act, cisgender men and boys may participate on men’s and

boys’ teams and may do so without being subject to the sex verification

procedure. So can transgender men and boys. Cisgender women may

participate on athletic teams designated for women and girls, though like

all athletes on these teams, they are subject to the sex verification

procedure that serves as the Act’s enforcement mechanism. Transgender

women and girls are uniquely disadvantaged under the Act:

Allowed to Subject to

Participate on Team Verification

Aligned with Gender Provision if Playing

Identity on Team Aligned

with Gender Identity

Cisgender men Yes No

and boys

Transgender men Yes No

and boys

Cisgender Yes Yes*

women and girls

Transgender No* Yes*

women and girls

An asterisk (*) indicates a change from the policies in place before the

Act’s passage.

HECOX V. LITTLE 71

Furthermore, even putting Feeney, Latta, and Pacific

Shores aside, no one disputes that heightened scrutiny

applies “[w]hen there is a proof that a discriminatory

purpose has been a motivating factor in the decision.”

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 265–66 (1977). A discriminatory purpose is

shown when “the decisionmaker, in this case a state

legislature, selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’

its adverse effects upon an identifiable group.” Feeney, 442

U.S. at 279.

These principles map perfectly onto Lindsay’s challenge

because the Act purposefully treats transgender women and

girls differently from every other group. The district court

found that “the law is directed at excluding women and girls

who are transgender, rather than on promoting sex equality

and opportunities for women.” Hecox I, 479 F. Supp. 3d at

983. This finding is well supported. The court inferred a

discriminatory purpose from the fact that the Act bars

transgender athletes categorically rather than focusing on

factors—such as puberty and circulating testosterone—that

a consensus of the medical community actually associates

with athletic performance. The district court noted that the

Act’s definition of “biological sex”:

excludes the one factor that a consensus of

the medical community appears to agree

drives the physiological differences between

male and female athletic performance.

Significantly, the preexisting Idaho and

current NCAA rules instead focus on that

factor. That the Act essentially bars

consideration of circulating testosterone

72 HECOX V. LITTLE

illustrates the Legislature appeared less

concerned with ensuring equality in athletics

than it was with ensuring exclusion of

transgender women athletes.

Id. at 984. The district court’s findings are not clearly

erroneous. Indeed, the Act’s legislative sponsor,

Representative Barbara Ehardt, forthrightly acknowledged

that the legislature’s purpose in enacting the statute was to

force transgender women and girls “to compete on the side

of those biological boys and men . . . whom they look alike.”

This unvarnished record and the district court’s cogent

recognition of the real change effected by the Act in Idaho

lend strong support for the district court’s conclusion that the

Act classifies based on transgender status and discriminates

against transgender women and girls.

I agree with the district court, and with the majority, that

intermediate scrutiny applies because the Act classifies and

discriminates on account of transgender status.

III. The Verification Provision Does Not Apply Only to

Female Students

I part company, however, with the majority’s conclusion

that “only women and girls who want to compete on Idaho

school athletic teams, and not male athletes, are subject to

the sex dispute verification process.” Maj. Op. at 36.

On its face, the sex verification provision is applicable to

any student, male or female, participating on “[a]thletic

teams or sports designated for females, women, or girls.”

See Idaho Code § 33-6203(2). By its terms, the verification

process applies to men and boys who wish to participate on

teams designated for women and girls, and it does not apply

to athletes of any gender who participate on teams

HECOX V. LITTLE 73

designated for men or boys. It is the team an athlete chooses

to join that dictates whether they are subject to the statute’s

verification process, not the athlete’s sex. 4

The majority’s approach and my own differ somewhat,

but we agree that the Act fails to satisfy heightened scrutiny.

The majority analyzes the verification provision in isolation,

decides that heightened scrutiny applies because the

provision does not apply to males (a proposition with which

I respectfully disagree), and then holds that the district court

did not abuse its discretion in concluding that Lindsay is

likely to succeed on her claim that the verification provision

is not substantially related to Idaho’s important

governmental interests. By contrast, I see no need to analyze

the verification provision in isolation. In my view, the

verification provision is an integral part of the ban on

transgender women and girls participating on women’s and

girls’ teams. It is the critical mechanism by which the ban is

implemented and enforced. Thus, I would simply address

whether the ban as a whole survives heightened scrutiny. As

explained, heightened scrutiny applies because the ban as a

4

The verification process applies to both male and female students, as

long as they join, or try to join, teams designated for women or girls. It

applies to: (1) cisgender female students who play on women’s and girls’

teams, as the Act allows; (2) transgender female students who play on

women’s and girls’ teams, as the Act prohibits; (3) transgender male

students (i.e., students who are assigned female at birth but identify as

male) if they choose to play on women’s and girls’ teams, as the Act

permits; and (4) cisgender male students who play on women’s and girls’

teams, as the Act prohibits, or who, like the plaintiffs in the Clark

litigation discussed below, desire to do so. The verification procedure

does not apply to any students playing on teams designated for men or

boys.

74 HECOX V. LITTLE

whole both classifies and discriminates based on transgender

status.

IV. Clark Does Not Control

I agree with the majority that our decision in Clark ex

rel. Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126

(9th Cir. 1982), is not controlling here. In Clark, we upheld

an Arizona policy prohibiting boys from playing on girls’

volleyball teams because: (1) “boys’ overall [athletic]

opportunity [wa]s not inferior to girls’”; and (2) sex served

as an “accurate proxy” for “real . . . physiological

differences.” Clark, 695 F.2d at 1131. We held that the

exclusion satisfied intermediate scrutiny because “[t]he

record makes clear that due to average physiological

differences, males would displace females to a substantial

extent if they were allowed to compete for positions on the

volleyball team,” and “athletic opportunities for women

would [thereby] be diminished.” Id.

Appellants’ reliance on Clark is misplaced. First, the

only issue we decided in Clark—whether a sex-based

classification was constitutionally permissible—is not in

dispute here. The district court dismissed Plaintiffs’ facial

challenges to the Act, Hecox I, 479 F. Supp. 3d at 971, in

light of Clark and the State’s argument that the ban “can . . .

be constitutionally applied to cisgender boys,” id. at 969.

Idaho has long maintained separate teams and sports for

men/boys and women/girls. See id. at 982. Those

classifications, which for decades have been widely

understood as a constitutionally permissible means of

advancing equality for women and girls in sports, are not at

issue here. The question that is presented here—whether a

classification based on “biological sex” or transgender status

HECOX V. LITTLE 75

is constitutionally permissible—is one that was not

presented in Clark.

Second, the facts of this case have little in common with

Clark. The record in Clark made clear that sex was a valid

proxy for average physiological differences between men

and women. Here, by contrast, the district court found that

the ban on transgender female athletes applies broadly to

many students who do not have athletic advantages over

cisgender female athletes. In addition, as the district court

pointed out, “under the Act, women and girls who are

transgender will not be able to participate in any school

sports, unlike the boys in Clark, who generally had equal

athletic opportunities.” Id. at 977 (emphasis added). 5 In

sum, Idaho’s ban on transgender women and girls must rise

or fall on its own merits; Clark is legally and factually

distinguishable.

5

See Hecox I, 479 F. Supp. 3d at 977 (“[T]he Act’s categorical exclusion

of transgender women and girls entirely eliminates their opportunity to

participate in school sports.”); see id. (noting that “forcing a transgender

woman to participate on a men’s team would be forcing her to be

cisgender, which is ‘associated with adverse mental health outcomes’”);

id. (“Participating in sports on teams that contradict one’s gender identity

‘is equivalent to gender identity conversion efforts, which every major

medical association has found to be dangerous and unethical.’”); Lindsay

Hecox decl. ¶ 37 (“I would not compete on a men’s team. I am not a

man, and it would be embarrassing and painful to be forced onto a team

for men—like constantly wearing a big sign that says ‘this person is not

a “real” woman.’ I would be an outcast on the men’s team.”).

76 HECOX V. LITTLE

V. The Act Is Not Substantially Related to the State’s

Important Interests and the District Court Did Not

Abuse Its Discretion by Granting Preliminary

Injunctive Relief

It is undisputed that the State has articulated “important

governmental objectives” here: “promot[ing] sex equality”

in sports and “providing opportunities for female athletes to

demonstrate their skill, strength, and athletic abilities while

also providing them with opportunities to obtain recognition

and accolades, college scholarships, and the numerous other

long-term benefits that flow from success in athletic

endeavors.” Idaho Code § 33-6202(12). Under intermediate

scrutiny, the operative question is simply whether “the

discriminatory means employed [by the Act] are

substantially related to the achievement of those objectives.”

United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting

Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

Given the district court’s extensive findings and our limited

and deferential review, I agree with the majority that the

district court did not abuse its discretion by concluding that

Lindsay is likely to succeed on her claim that the Act is not

substantially related to the State’s interests in promoting

equality and providing athletic opportunities, including

scholarships, for women.

In large part, the district court concluded that the Act was

unrelated to the State’s important interests because it

excludes transgender women and girls from women’s sports,

purportedly in the interest of competitive fairness, but it

excludes them in ways that bear no relationship to

physiological advantages and athletic performance. After

reviewing the expert evidence presented by the parties, the

district court found that “the sex difference in circulating

testosterone of adults explains most, if not all, of the sex

HECOX V. LITTLE 77

differences in sporting performance.” Hecox I, 479 F. Supp.

3d at 980. Appellants disagree with that finding, but on the

record presented to the district court at the preliminary

injunction stage, the finding was well supported, and it is not

clearly erroneous. Indeed, the district court drew this finding

from the defense expert, Dr. Brown’s, own report. See id.;

Brown decl. ¶ 81.

Given the medical-community consensus regarding the

connection between circulating testosterone and athletic

performance, the district court reasonably rejected

Appellants’ contention that the Act’s categorical ban is

substantially related to the State’s interests in promoting

equality and providing athletic opportunities for women and

girls. The district court found that the ban’s broad sweep

extends to many transgender women and girls who do not

possess physiological advantages over cisgender women and

girls. The court noted, for instance, that the ban applies to

students who are too young to have experienced puberty.

The court found that these girls have no competitive

advantage, because, “[b]efore puberty, boys and girls have

the same levels of circulating testosterone.” Id. at 979.

These findings are not clearly erroneous. On the contrary,

they appear to be undisputed. See Brown decl. ¶ 113

(“[B]efore puberty, boys and girls do not differ in height,

muscle and bone mass.”), ¶ 114 (“This physical advantage

in performance arises during early adolescence when male

puberty commences after which men acquire larger muscle

mass and greater strength, larger and stronger bones, higher

circulating haemoglobin as well as mental and/or

psychological differences.”), ¶ 119 (“[G]ender divergences .

. . arise from the increase in circulating testosterone from the

start of male puberty.”); Safer decl. ¶ 38 (“Increased

testosterone begins to affect athletic performance at the

78 HECOX V. LITTLE

beginning of puberty.”); Safer suppl. decl. ¶ 13 (“[B]efore

puberty there are not noticeable performance difference[s]

between boys and girls. . . . There is simply no basis for the

assertion that pre-pubertal children have physical sex-based

performance differences.”).

The district court also noted that the Act applies to the

“population of transgender girls who, as a result of puberty

blockers at the start of puberty and gender affirming

hormone therapy afterward, never go through a typical male

puberty at all.” Hecox I, 479 F. Supp. 3d at 980. The court

found that these athletes too do “not have an ascertainable

advantage over cisgender female athletes.” Id. These

findings are not clearly erroneous, and they also appear to be

undisputed. Plaintiffs’ expert, Dr. Safer, testified

consistently with the district court’s findings, see Safer decl.

¶¶ 47–49, and the defense expert, Dr. Brown, appears to

have offered no contrary opinion on this point. Although Dr.

Brown argued that transgender women and girls who have

gone through puberty have some enduring athletic

advantages, even if they later undergo hormone therapy, see

Brown decl. ¶¶ 11(c)–13, 126–53, 163(c), he did not

challenge Dr. Safer’s conclusions regarding women who are

administered puberty blockers at the start of puberty and

gender-affirming hormone therapy afterward.

The district court also found that the Act is unrelated to

competitive fairness because it applies to women and girls

who, like Lindsay, have undergone hormone therapy and

testosterone suppression for twelve months or more. See

Hecox I, 479 F. Supp. 3d at 979–80. The parties’ experts

disagree about whether these women and girls have lasting

physiological advantages, but the district court’s findings are

well-grounded in the evidentiary record that was available to

the court. They are consistent with Dr. Safer’s opinion that

HECOX V. LITTLE 79

“physiological advantages are not present when a

transgender woman undergoes hormone therapy and

testosterone suppression,” id. at 979; with the results of the

Harper study, which the parties appear to agree is “the only

study examining the effects of gender-affirming hormone

therapy on the athletic performance of transgender athletes,”

id. at 980; with the “medical consensus that the difference in

testosterone is generally the primary known driver of

differences in athletic performance between elite male

athletes and elite female athletes,” id.; with the findings of

the Handelsman study—cited by the defense’s own expert,

see Brown decl. ¶ 81—that the “evidence makes it highly

likely that the sex difference in circulating testosterone of

adults explains most, if not all, of the sex differences in

sporting performance,” Hecox I, 479 F. Supp. 3d at 980; and

with the IHSAA and NCAA policies that existed before the

Act’s adoption.

The Act’s relationship to its stated purposes is also in

tension with its broad application to all sports. It applies not

only to elite or highly competitive sports but also to less

competitive grade school and club sports. It applies to all

ages and grades, and to all sports regardless of physicality,

risk of injury, or selectivity. Intermediate scrutiny does not

require narrow tailoring, but it does require “a substantial

relationship between the exclusion of [transgender athletes]

from the team and the goal of . . . providing equal

opportunities for women.” See Clark, 695 F.2d at 1131.

Here, the district court reasonably concluded that the “fit”

between the Act’s means and ends is sorely lacking.

Finally, the district court found that an integral

component of the ban—the State’s uniquely invasive dispute

and sex verification provision—was likely to hinder rather

than advance the Act’s stated interest in promoting athletic

80 HECOX V. LITTLE

opportunities for women. The court found that subjecting

female athletes to bullying, harassment, and invasive

medical procedures is likely to have the perverse effect of

discouraging women from participating in scholastic sports,

a result directly contrary to the Act’s stated purpose. See

Hecox I, 479 F. Supp. 3d at 985–87. These findings are not

clearly erroneous.

Given the district court’s extensive and well-supported

findings, I agree with the majority that the district court did

not abuse its discretion by concluding that Lindsay is likely

to succeed on her claim that the Act is not substantially

related to its purported goals of promoting sex equality,

providing opportunities for female athletes, or increasing

female athletes’ access to scholarships. Accordingly, the

district court did not abuse its discretion by concluding that

Lindsay is likely to succeed on the merits of her equal

protection claim.

For the reasons given by the majority, I also agree that

the district court did not abuse its discretion by concluding

that the remaining preliminary injunction factors favored

relief. The majority correctly observes that where the State

is a party, the last two factors in the Winter test for

preliminary injunctive relief merge. I only add that the

public interest factor favors relief here because “all citizens

have a stake in upholding the Constitution,” Preminger v.

Principi, 422 F.3d 815, 826 (9th Cir. 2005), and “it is always

in the public interest to prevent the violation of a party’s

constitutional rights,” Melendres v. Arpaio, 695 F.3d 990,

1002 (9th Cir. 2012) (citation omitted). In sum, I agree with

the majority that the district court did not abuse its discretion

by concluding that preliminary injunctive relief was

warranted.

HECOX V. LITTLE 81

VI. The Preliminary Injunction Is Insufficiently

Specific

Intervenors also raise several procedural challenges to

the preliminary injunction. I conclude that some of them

have merit.

Under Rule 65(d)(1) of the Federal Rules of Civil

Procedure, “[e]very order granting an injunction . . . must:

(A) state the reasons why it issued; (B) state its terms

specifically; and (C) describe in reasonable detail—and not

by referring to the complaint or other document—the act or

acts restrained or required.” “The Rule was designed to

prevent uncertainty and confusion on the part of those faced

with injunctive orders, and to avoid the possible founding of

a contempt citation on a decree too vague to be understood.”

Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam).

In addition, “[u]nless the trial court carefully frames its

orders of injunctive relief, it is impossible for an appellate

tribunal to know precisely what it is reviewing.” Id. at 477.

“Injunctions are not set aside under rule 65(d), however,

unless they are so vague that they have no reasonably

specific meaning.” United States v. Holtzman, 762 F.2d 720,

726 (9th Cir. 1985).

The majority deems the preliminary injunction

sufficiently specific because “[t]he district court enjoined the

enforcement of any of the provisions of the Act.” Maj. Op.

at 56. But the district court ruled only that “[t]he Motion for

Preliminary Injunction (Dkt. 22) is GRANTED.” Hecox I,

479 F. Supp. 3d at 989. The court did not specify whether it

was enjoining all provisions of the Act or only some of them,

or whether it was enjoining any specific provision of the Act

in its entirety or only as applied to certain classes of

individuals. The court’s findings could be understood as

82 HECOX V. LITTLE

implying that the court intended to enjoin the Act’s ban

solely as to transgender women and girls who do not have

athletic advantages over other female athletes—i.e.,

transgender women and girls who either have never

undergone puberty or have suppressed their testosterone

levels through hormone therapy. Alternatively, the court’s

broad language could be read as enjoining the entire Act in

all respects, as the majority suggests.

Even if it were clear that the district court intended to

enjoin the Act in its entirety, the injunction remains unclear

because it does not specify the eligibility rules applicable

while the Act is preliminarily enjoined. The majority asserts

that the injunction is sufficiently clear because it “explicitly

preserved” the NCAA and IHSAA rules in place “[a]t the

time of the injunction,” Maj. Op. at 57 n.21 (citing Hecox I,

479 F. Supp. 3d at 988), rules that “allowed transgender

women and girls ‘to compete on girls’ teams after

completing one year of hormone therapy suppressing

testosterone under the care of a physician,’” Maj. Op. at 57

n.21 (quoting Hecox I, 479 F. Supp. 3d at 947). If that was

the court’s intent, it did not say so, and as the parties

recognize in their briefs, the NCAA rules have changed

substantially since the district court granted the preliminary

injunction three years ago. 6 It is unclear whether the “status

quo” should be understood as the NCAA rules in place in

2020 or the NCAA rules in place today.

Rather than subjecting school administrators to

uncertainty about the scope of the injunction, we should ask

6

This appeal has been pending for nearly three years due to a backlog in

the district court’s docket arising from the COVID-19 pandemic and this

court’s limited remand—conditions that the district court could not have

anticipated at the time it granted the preliminary injunction.

HECOX V. LITTLE 83

the district court to provide the specificity that Rule 65(d)(1)

requires.

VII. On the Current Findings, the Injunction Is

Overbroad to the Extent It Applies to Transgender

Women Who Are Not Receiving Gender-Affirming

Hormone Therapy

As discussed, there are no findings in the current record

to suggest that Lindsay is likely to succeed on her claim that

the ban is unconstitutional as applied to transgender female

athletes who have gone through puberty and are not

receiving gender-affirming hormone therapy. Accordingly,

if the injunction extends to these individuals, the district

court likely abused its discretion. See City & County of San

Francisco, 897 F.3d at 1244 (“Once a constitutional

violation is found, a federal court is required to tailor the

scope of the remedy to fit the nature and extent of the

constitutional violation.” (quoting Hills, 425 U.S. at 293–

94)); Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d

970, 974 (9th Cir. 1991) (“Injunctive relief . . . must be

tailored to remedy the specific harm alleged.”). I would

vacate in part and remand for the district court to tailor the

scope of the remedy to the constitutional violation.

VIII. The District Court Did Not Abuse Its Discretion

by Enjoining Enforcement of the Act Against Non-

Plaintiffs

Intervenors contend that the preliminary injunction is

overbroad because it bars enforcement of § 33-6203 against

non-plaintiffs. They argue that this relief was improper

because “the district court dismissed Plaintiffs’ facial

challenge and proceeded only on their as-applied claims.”

Intervenors’ Opening Brief at 59. In light of the Supreme

84 HECOX V. LITTLE

Court’s decision in Doe, 561 U.S. 186, I agree with the

majority that this argument is unpersuasive.

I take no issue with the general proposition that

“injunctive relief generally should be limited to apply only

to named plaintiffs where there is no class certification.”

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486,

1501 (9th Cir. 1996); see United States v. Texas, 143 S. Ct.

1964, 1980 (2023) (Gorsuch, J., concurring) (“Traditionally,

when a federal court finds a remedy merited, it provides

party-specific relief, directing the defendant to take or not

take some action relative to the plaintiff. If the court’s

remedial order affects nonparties, it does so only

incidentally.”).

Lindsay’s claims, however, are neither strictly facial nor

strictly as applied, and I join the majority in reading the

Supreme Court’s decision in Doe as approving of precisely

the kind of relief Lindsay seeks here. In Doe, the plaintiffs

were referendum petition signers who did not want their

names and addresses, or the names and addresses of other

referendum petition signers, disclosed under the state’s

Public Records Act (PRA). The Court explained that the

plaintiffs’ claim was neither purely facial nor purely as

applied:

[The claim] obviously has characteristics of

both: The claim is “as applied” in the sense

that it does not seek to strike the PRA in all

its applications, but only to the extent it

covers referendum petitions. The claim is

“facial” in that it is not limited to plaintiffs’

particular case, but challenges application of

HECOX V. LITTLE 85

the law more broadly to all referendum

petitions.

Doe, 561 U.S. at 194. Although the scope of permissible

remedies was not the issue before the Court, the Court made

clear that the plaintiffs could seek an injunction barring

enforcement of the PRA against non-plaintiffs:

The label is not what matters. The important

point is that plaintiffs’ claim and the relief

that would follow—an injunction barring the

secretary of state “from making referendum

petitions available to the public”—reach

beyond the particular circumstances of these

plaintiffs. They must therefore satisfy our

standards for a facial challenge to the extent

of that reach.

Id. (citation omitted). Given Doe, and in light of the partially

facial nature of Lindsay’s claims, I agree with the majority

that the district court permissibly barred enforcement of the

Act beyond the individual Plaintiffs.

The relief granted by the district court is consistent with

the principle that “an injunction ‘should be no more

burdensome to the defendant than necessary to provide

complete relief to the plaintiffs before the court.’” City &

County of San Francisco v. Barr, 965 F.3d 753, 765 (9th Cir.

2020) (quoting L.A. Haven Hospice, Inc. v. Sebelius, 638

F.3d 644, 664 (9th Cir. 2011)); see also E. Bay Sanctuary

Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021) (en

banc); Doe #1 v. Trump, 957 F.3d 1050, 1069 (9th Cir. 2020).

Enjoining enforcement of the Act against Lindsay, while

leaving it in place as to others, risks further stigmatizing her

because she would be isolated as the only transgender female

86 HECOX V. LITTLE

athlete playing on women’s and girls’ teams in all of Idaho.

It would also deprive her of the opportunity to have

transgender teammates and the chance to compete against all

female athletes, including other transgender athletes. It

would therefore undermine two benefits Lindsay would

derive from participating in women’s sports: building

“camaraderie” and “forming relationships with [her]

teammates,” Lindsay Hecox decl. ¶ 8; Lindsay Hecox suppl.

decl. ¶ 22; and “competing” against other women and girls,

Lindsay Hecox decl. ¶¶ 22, 30, 32, 39; Lindsay Hecox suppl.

decl. ¶ 17.

IX. Conclusion

For the foregoing reasons, I would affirm the district

court’s injunction in part, vacate it in part, and remand.

The issues presented in this case are novel and difficult

and decisionmakers around the world are still in the process

of designing and implementing sensible standards regulating

the participation of transgender women and girls in women’s

sports. See generally Nondiscrimination on the Basis of Sex

in Education Programs or Activities Receiving Federal

Financial Assistance: Sex-Related Eligibility Criteria for

Male and Female Athletic Teams, 88 Fed. Reg. 22,860–

22,891 (proposed Apr. 13, 2023) (to be codified at 34 C.F.R.

§ 106.41). Indeed, the parties’ briefs acknowledge that since

the district court ruled, some of the world’s leading athletic

organizations, including the International Olympic

Committee (IOC) and the NCAA, have revisited their

standards governing participation by transgender women in

HECOX V. LITTLE 87

women’s athletics. Notably, both organizations continue to

allow transgender women to compete. 7

The standards adopted by the IOC, the NCAA, and

others aim to balance a range of important values and

7

In January 2022, the NCAA adopted “a sport-by-sport approach to

transgender participation that preserves opportunity for transgender

student-athletes while balancing fairness, inclusion and safety for all

who compete.” Press Release, NCAA, Board of Governors Updates

Transgender Participation Policy (Jan. 19, 2022),

https://www.ncaa.org/news/2022/1/19/media-center-board-of-

governors-updates-transgender-participation-policy.aspx

[https://perma.cc/7ZFT-GA6L] (last visited July 27, 2023). Under the

NCAA standards, transgender student-athletes are allowed to compete

but may be required to “document sport-specific testosterone levels.”

Id.; see also Press Release, NCAA, Transgender Student-Athlete

Participation Policy,

https://www.ncaa.org/sports/2022/1/27/transgender-participation-

policy.aspx [https://perma.cc/FH8V-VVKA] (last updated Apr. 17,

2023). The IOC likewise follows a sport-by-sport approach. See Int’l

Olympic Comm., IOC Framework on Fairness, Inclusion and Non-

Discrimination on the Basis of Gender Identity and Sex Variations 1

(Nov. 22, 2021),

https://stillmed.olympics.com/media/Documents/Beyond-the-

Games/Human-Rights/IOC-Framework-Fairness-Inclusion-Non-

discrimination-2021.pdf [https://perma.cc/MX6D-Y4RG] (last visited

July 27, 2023). The IOC framework states that “[n]o athlete should be

precluded from competing or excluded from competition on the

exclusive ground of an unverified, alleged or perceived unfair

competitive advantage due to their sex variations, physical appearance

and/or transgender status,” and that, “[u]ntil evidence . . . determines

otherwise, athletes should not be deemed to have an unfair or

disproportionate competitive advantage due to their sex variations,

physical appearance and/or transgender status.” Id. at 4. It also states

that “criteria to determine eligibility for a gender category should not

include gynaecological examinations or similar forms of invasive

physical examinations, aimed at determining an athlete’s sex, sex

variations or gender.” Id. at 5.

88 HECOX V. LITTLE

interests, including, among others, inclusion, non-

discrimination, competitive fairness, safety, and completing

the still unfinished and important job of ensuring equal

athletic opportunities for women and girls. See Women’s

Sports Found., 50 Years of Title IX: We’re Not Done Yet 3

(2022) (“Sports participation is vital to the development of

girls and women. The benefits are far-reaching and lifelong,

including improved physical, social, and emotional health;

enhanced confidence; academic success; leadership

opportunities; and so much more. Progress over the last 50

years is impressive, and yet it is not enough. The playing

field is not yet level—it’s not even close.”),

https://www.womenssportsfoundation.org/articles_and_rep

ort/50-years-of-title-ix-were-not-done-yet/ (last visi

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