Petition for Writ of Certiorari — Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al.

NO. __________

IN THE

Supreme Court of the United States

BRADLEY LITTLE, in his official capacity as Governor

of the State of Idaho; MADISON KENYON; MARY

MARSHALL, et al.,

Petitioners,

v.

LINDSAY HECOX; JANE DOE, with her next friends

Jean Doe and John Doe,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES A. CAMPBELL

JOHN J. BURSCH

LINCOLN DAVIS WILSON

CHRISTOPHER P.

SCHANDEVEL

CODY S. BARNETT

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(202) 393-8690

Counsel for Petitioners

RAÚL R. LABRADOR

ATTORNEY GENERAL

ALAN M. HURST

SOLICITOR GENERAL

Counsel of Record

JOSHUA N. TURNER

JAMES E.M. CRAIG

700 W Jefferson St #210

Boise, ID 83720

alan.hurst@ag.idaho.gov

(208) 332-3548

Counsel for State

Petitioners

i

QUESTIONS PRESENTED

Women and girls have overcome decades of

discrimination to achieve a more equal playing field

in many arenas of American life—including sports.

Yet in some competitions, female athletes have

become bystanders in their own sports as male

athletes who identify as female have taken the place

of their female competitors—on the field and on the

winners’ podium.

The Idaho Legislature addressed that injustice by

enacting the Fairness in Women’s Sports Act, which

ensures that women and girls do not have to compete

against men and boys no matter how those men and

boys identify. The Act—one of 25 such state laws

around the country—is consistent with longstanding

government policies preserving women’s and girls’

sports due to the “average real differences” between

the sexes. Clark ex rel. Clark v. Ariz. Interscholastic

Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982).

Breaking with this Court’s precedents, its own

caselaw, other circuit decisions, and biological reality,

the Ninth Circuit panel here upheld an injunction

against the Act because it prevents “transgender

women and girls”—meaning males who identify as

women and girls—from competing in “women’s

student athletics.” App.4a–5a.

The question presented is:

Whether laws that seek to protect women’s and

girls’ sports by limiting participation to women and

girls based on sex violate the Equal Protection Clause

of the Fourteenth Amendment.

ii

PARTIES TO THE PROCEEDING

State Petitioners Bradley Little; Debbie Critchfield (formerly Sherri Ybarra); Individual Members of

the State Board of Education; Boise State University;

Marlene Tromp; Independent School District of Boise

City, #1; Lisa Roberts (formerly Coby Dennis);

Individual Members of the Board of Trustees of the

Independent School District of Boise City, #1; and

Individual Members of the Idaho Code Commission

were Defendants in the district court and Appellants

in the Ninth Circuit. Intervenor Petitioners Madison

Kenyon and Mary Marshall were Intervenors in the

district court and Appellants in the Ninth Circuit.

Petitioners are all individuals or public entities that

have no stock, and no parent or publicly held

companies have any ownership interests in them.

Respondents Lindsay Hecox and Jane Doe, with

her next friends Jean Doe and John Doe, are natural

persons who were Plaintiffs in the district court and

Appellees in the Ninth Circuit.

iii

LIST OF ALL PROCEEDINGS

1. United States Court of Appeals for the Ninth

Circuit, Nos. 20-35813 and 20-35815, Hecox v.

Little, amended opinion issued June 14, 2024.

2. United States Court of Appeals for the Ninth

Circuit, Nos. 20-35813 and 20-35815, Hecox v.

Little, order denying prior petition for

rehearing en banc dated June 10, 2024.

3. United States Court of Appeals for the Ninth

Circuit, Nos. 20-35813 and 20-35815, Hecox v.

Little, order withdrawing August 17, 2023

opinion dated April 29, 2024.

4. United States Court of Appeals for the Ninth

Circuit, Nos. 20-35813 and 20-35815, Hecox v.

Little, opinion issued August 17, 2023.

5. United States District Court for the District of

Idaho, No. 1:20-cv-00184, Hecox v. Little,

memorandum decision and order granting

preliminary injunction, granting intervention,

and denying motion to dismiss issued August

17, 2020.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

LIST OF ALL PROCEEDINGS ................................ iii

APPENDIX TABLE OF CONTENTS ...................... vi

TABLE OF AUTHORITIES ................................... viii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISION

AND STATUTES .................................................. 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 5

REASONS FOR GRANTING THE WRIT................. 9

I. The Ninth Circuit’s decision deepens and

widens two circuit splits, each of which

warrants this Court’s review. ............................... 9

A. The Ninth Circuit widened the split over

whether sex is a subjective term in equalprotection classifications. .............................. 10

B. The Ninth Circuit also deepened the split

over whether transgender identity is a

quasi-suspect class. ....................................... 16

v

II. The Ninth Circuit’s decision was egregiously

wrong and conflicts with this Court’s

precedents. .......................................................... 17

A. This Court’s cases establish that sex is

binary, biological, and immutable. ............... 17

B. The Ninth Circuit flouted this Court’s

intermediate-scrutiny jurisprudence. ........... 20

C. The Ninth Circuit wrongly focused on

transgender identity and misapplied this

Court’s precedents by treating it as a

quasi-suspect class. ....................................... 25

III.This case is an ideal vehicle for resolving

important equal-protection issues and

entrenched circuit splits. .................................... 29

CONCLUSION ......................................................... 34

vi

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Ninth Circuit,

Amended Opinion in 20-35813/20-35815

Issued June 14, 2024................................................ 1a

United States Court of Appeals

for the Ninth Circuit,

Order denying petition for rehearing en banc

Issued June 10, 2024 ............................................. 62a

United States Court of Appeals

for the Ninth Circuit,

Order Withdrawing August 17, 2023 Opinion

Issued April 29, 2024 ............................................. 66a

United States Court of Appeals

for the Ninth Circuit,

Opinion in 20-35813/20-35815

Issued August 17, 2023 .......................................... 70a

United States District Court

for the District of Idaho,

Memorandum Decision and Order

Issued August 17, 2020 ........................................ 163a

Idaho Code § 33-6202 ........................................... 263a

Idaho Code § 33-6203 ........................................... 267a

20 U.S.C. § 1681 ................................................... 268a

45 C.F.R. § 86.41 .................................................. 273a

vii

Volume 2

Attachments to Ninth Circuit

Opinion Issued August June 14, 2024 ................ 276a

Attachments to Ninth Circuit

Opinion Issued August 17, 2023.......................... 310a

viii

TABLE OF AUTHORITIES

Cases

A.C. ex rel. M.C. v. Metropolitan School District

of Martinsville,

75 F.4th 760 (7th Cir. 2023) ........................ 12, 15

Adams ex rel. Kasper v. School Board of St. Johns

County,

57 F.4th 791 (11th Cir. 2022) ............... 10, 13, 16,

19, 22, 25

B.P.J. ex rel. Jackson v. West Virginia State

Board of Education,

98 F.4th 542 (4th Cir. 2024) .......11, 12, 16, 21, 30

B.P.J. v. West Virginia State Board of Education,

649 F. Supp. 3d 220 (S.D. W. Va. 2023) ............ 23

Board of Trustees of State University of New

York v. Fox,

492 U.S. 469 (1989)............................................ 23

Bostock v. Clayton County,

590 U.S. 644 (2020)............................................ 20

Bowen v. Gilliard,

483 U.S. 587 (1987)...................................... 27, 28

Brandt v. Rutledge,

47 F.4th 661 (8th Cir. 2022) .............................. 17

Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263 (1993)............................................ 20

ix

Brown v. Entertainment Merchants Association,

564 U.S. 786 (2011)............................................ 23

Brown v. Zavaras,

63 F.3d 967 (10th Cir. 1995) ............................. 16

Califano v. Boles,

443 U.S. 282 (1979)............................................ 26

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985)............................................ 27

Clark ex rel. Clark v. Arizona Interscholastic

Association,

695 F.2d 1126 (9th Cir. 1982)............. i, 20, 23, 24

Clark v. Jeter,

486 U.S. 456 (1988)............................................ 18

Eknes-Tucker v. Governor of Alabama,

80 F.4th 1205 (11th Cir. 2023) .................... 16, 17

Fowler v. Stitt,

104 F.4th 770 (10th Cir. 2024) .......................... 16

Frontiero v. Richardson,

411 U.S. 677 (1973)...................................... 10, 18

Grimm v. Gloucester County School Board,

972 F.3d 586 (4th Cir. 2020) ....................... 11, 16

Jackman v. Rosenbaum Company,

260 U.S. 22 (1922).............................................. 25

Kadel v. Folwell,

100 F.4th 122 (4th Cir. 2024) ............................ 16

x

Karnoski v. Trump,

926 F.3d 1180 (9th Cir. 2019)................ 16, 27, 28

L.W. ex rel. Williams v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) .................. 16, 27, 28

Labrador v. Poe,

144 S. Ct. 921 (2024)........................................ 1, 8

Michael M. v. Superior Court of Sonoma County,

450 U.S. 464 (1981)............................................ 24

Mississippi University for Women v. Hogan,

458 U.S. 718 (1982)............................................ 18

O’Connor v. Board of Education of School

District 23,

449 U.S. 1301 (1980).......................................... 21

Personnel Administrator of Massachusetts v.

Feeney,

442 U.S. 256 (1979)...................................... 20, 26

San Antonio Independent School District v.

Rodriguez,

411 U.S. 1 (1973)................................................ 28

Students for Fair Admissions, Inc. v. President

& Fellows of Harvard College,

600 U.S. 181 (2023)............................................ 29

Sun Oil Company v. Wortman,

486 U.S. 717 (1988)............................................ 25

Tuan Anh Nguyen v. INS,

533 U.S. 53 (2001).................................. 10, 18, 23

xi

Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997)............................................ 23

United States v. Rahimi,

2024 WL 3074728 (U.S. June 21, 2024) ............ 25

United States v. Virginia,

518 U.S. 515 (1996).........................3, 6, 10, 18, 21

Ward v. Rock Against Racism,

491 U.S. 781 (1989)............................................ 24

Washington v. Davis,

426 U.S. 229 (1976)............................................ 26

Whitaker ex rel. Whitaker v. Kenosha Unified

School District No. 1 Board of Education,

858 F.3d 1034 (7th Cir. 2017)............................ 12

Witt v. Department of the Air Force,

527 F.3d 806 (9th Cir. 2008) ............................. 28

Statutes

28 U.S.C. 1254 ............................................................ 1

28 U.S.C. 1291 ............................................................ 1

28 U.S.C. 1331 ............................................................ 1

Idaho Code § 33-6202 ..................................... 6, 21, 26

Idaho Code § 33-6203 ................................................. 6

xii

Other Authorities

Am. Psychiatric Ass’n, Diagnostic & Statistical

Manual of Mental Disorders (5th ed. 2013) ...... 19

Amanda Wallace, Transgender Swimmer at

Ramapo College Faces More Criticism After

Breaking School Record, NorthJersey.com

(Feb. 20, 2024)...................................................... 5

Carl R. Trueman, The Rise and Triumph of the

Modern Self (2020)............................................. 18

Doriane Coleman, Martina Navratilova, et al.,

Pass the Equality Act, But Don’t Abandon

Title IX, Washington Post (Apr. 29, 2019) .......... 6

Doriane Coleman, Sex in Sport, 80 L. and

Contemporary Problems 63 (2017) ..................... 6

Female, WEBSTER’S DICTIONARY (1828) ................... 19

Greg Johnson, Thomas Concludes Spectacular

Season with National Title, Penn Today

(Mar. 20, 2022) ..................................................... 5

J. Michael Bailey & Kiira Triea, What Many

Transgender Activists Don’t Want You to

Know: And Why You Should Know it

Anyway, 50 Perspectives in Biology and

Medicine (Fall 2007) .......................................... 19

Male, WEBSTER’S DICTIONARY (1828) ....................... 18

Maria Cramer, How Women’s Sports Teams Got

Their Start, N.Y. Times (Apr. 28, 2022) ........... 25

1

DECISIONS BELOW

The district court’s August 17, 2020 decision

granting Respondents’ motion for a preliminary

injunction is reported at 479 F. Supp. 3d 930 (D. Idaho

2020), and printed at App.163a–262a. The Ninth Circuit’s January 30, 2023 decision holding that Respondents have Article III standing is not reported but is

available at 2023 WL 1097255 (9th Cir. 2023). The

Ninth Circuit’s August 17, 2023 initial merits opinion

affirming the district court is reported at 79 F.4th

1009 (9th Cir. 2023), and printed at App.70a–162a.

Petitioners filed a petition for rehearing en banc. But

following this Court’s decision in Labrador v. Poe, 144

S. Ct. 921 (2024), the Ninth Circuit withdrew its

initial merits opinion on April 29, 2024, then issued

an amended opinion on June 7, 2024, and an

“updated” amended opinion on June 14, 2024, to

correct formatting in and add a syllabus to the June

7, 2024 decision. The June 14, 2024 opinion is not yet

reported but is available at 2023 WL 11804896 and is

printed at App.1a–61a.

STATEMENT OF JURISDICTION

The Ninth Circuit entered judgment on June 14,

2024, nearly four years after the district court

enjoined Idaho’s Fairness in Women’s Sports Act.

Lower courts had jurisdiction under 28 U.S.C. 1331

and 28 U.S.C. 1291. This Court has jurisdiction under

28 U.S.C. 1254(1).

2

PERTINENT CONSTITUTIONAL

PROVISION AND STATUTES

The Equal Protection Clause states, in relevant

part: “No State shall make or enforce any law which

shall … deny to any person within its jurisdiction the

equal protection of the laws.”

Relevant provisions of Title IX, Title IX regulations, and the Idaho Fairness in Women’s Sports Act

are reprinted in the Appendix at 268a, 273a, and

263a–67a, respectively.

3

INTRODUCTION

Women and girls have fought for decades to

achieve an equal playing field. Nowhere has that been

more evident than in sports. Through persistent

advocacy, women have come to occupy an area once

dominated by men. And they’ve done so by carving out

their own space, allowing them to showcase their

unique skills and abilities.

These spaces are now vanishing. The last decade

has exhibited a growing trend of males identifying as

females competing against—and beating—females in

women’s sports across the country. Countless female

student-athletes—including Olympic swimmers at

the NCAA championships, high-school sprinters in

Connecticut, and Ivy League swimmers—have been

shoved aside by male athletes benefiting from obvious

physiological advantages.

In response to this growing trend, the Idaho

Legislature enacted the Fairness in Women’s Sports

Act. The Fairness Act ensures that women and girls

are not forced to compete against men and boys who

benefit from the “enduring” “physical differences

between men and women.” United States v. Virginia,

518 U.S. 515, 533 (1996) (cleaned up). And it does so

by drawing an across-the-board distinction based on

sex, as this Court’s intermediate-scrutiny standard

has long allowed.

In the decision below, the Ninth Circuit upheld an

injunction against the Fairness Act, holding that the

Equal Protection Clause prohibits Idaho from

drawing that sex-based distinction. In so doing, the

Ninth Circuit denied Idaho’s sovereign interests in

protecting spaces reserved exclusively for tens of

4

millions of female athletes. And its decision places the

Ninth Circuit firmly on the wrong side of two

entrenched circuit splits: whether sex is objectively

defined in Equal Protection jurisprudence, and

whether transgender identity is a quasi-suspect class.

This Court’s review is urgently needed to resolve

these splits and preserve the equal playing field

women have fought to secure. And it is even more

important because United States v. Skrmetti, No. 23477, will not resolve the issues presented here—how

to define sex, how much deference the states receive

when they protect women’s sports, how weighty their

interest is in preserving female athletics, and

whether assigning athletic teams based on sex is a

legitimate way to advance that interest.

To ensure that both the Equal Protection and Title

IX objections to laws protecting women’s sports are

addressed in a single opinion, the Court should also

grant the concurrently filed petition in State of West

Virginia v. B.P.J., No. 23-___, and hear arguments in

the two cases the same day. Granting certiorari only

in one of these two cases would prevent the Court

from resolving important questions that warrant this

Court’s review.

Every day the Ninth Circuit’s decision stands,

female athletes suffer injustice. The petition should

be granted without delay.

5

STATEMENT OF THE CASE

Madison Kenyon and Mary Marshall ran on the

women’s track and cross-country teams at Idaho

State University. Both worked hard to achieve the

best times and win. Yet in 2019, they both lost—by a

significant margin—to June Eastwood, a male athlete

who identified as female. App.21a. That surprised no

one; Eastwood competed on the men’s team the year

before and recorded times that would have broken

national women’s records. Kenyon felt “frustrated

and defeated”; Marshall felt her hard work did “not

matter.” Exs. A & B to Mem. in Supp. of Mot. to

Intervene, Hecox v. Little, No. 1:20-cv-0018 (D. Idaho).

Madison and Mary are the tip of the iceberg. From

2017 through 2019, two Connecticut male high-school

athletes who identify as female broke 17 track

records, took 13 girls’ state-championship titles, and

deprived girls of more than 68 opportunities to

advance to higher-level competitions—opportunities

that otherwise would have gone to females. Appl. to

Vacate Inj. at 5, West Virginia v. B.P.J., No. 22A800

(Mar. 9, 2023). Accord App.117a. A couple of years

ago, a male swimmer who identifies as a woman, Lia

Thomas, won the NCAA Division I Championships in

the women’s 500-yard freestyle—beating two female,

former Olympians. Greg Johnson, Thomas Concludes

Spectacular Season with National Title, Penn Today

(Mar. 20, 2022), perma.cc/EC6R-72SZ. Meanwhile, a

male swimmer at Ramapo College has been setting

school records after switching to the women’s team.

Amanda Wallace, Transgender Swimmer at Ramapo

College Faces More Criticism After Breaking School

Record,

NorthJersey.com

(Feb.

20,

2024),

perma.cc/758A-B4TU. The list goes on.

6

Injustice like this motivated Idaho to enact the

Fairness in Women’s Sports Act. Under the Act,

student sports are designated “based on biological

sex.” Idaho Code § 33-6203(1). And sports “designated

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

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

distinction applies to all males; the Act says nothing

about gender identity. If a dispute arises, schools are

to request “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.” Id. § 33-6203(3). And such statements

can be based on a routine sports physical. Ibid.

In adopting the Act, Idaho found extensive legislative facts based on the “inherent differences between

men and women,” “rang[ing] from chromosomal and

hormonal differences to physiological differences.” Id.

§ 33-6202(1)–(2) (quoting Virginia, 518 U.S. at 533).

As the Legislature found, men “have higher natural

levels of testosterone, which affects traits such as

hemoglobin levels, body fat content, the storage and

use of carbohydrates, and the development of type 2

muscle fibers, all of which result in men being able to

generate higher speed and power during physical

activity.” Id. § 33-6202(4) (quoting Doriane Coleman,

Sex in Sport, 80 L. and Contemporary Problems 63,

74 (2017)). “[I]n every sport except sailing, shooting,

and riding, there will always be significant numbers

of boys and men who would beat the best girls and

women in head-to-head competition. Claims to the

contrary are simply a denial of science.” Id. § 336202(10) (quoting Doriane Coleman, Martina

Navratilova, et al., Pass the Equality Act, But Don’t

Abandon Title IX, Washington Post (Apr. 29, 2019)).

7

Soon after the Act’s passage, though, Respondents

Lindsey Hecox and Jane Doe sued, claiming the

Fairness Act violates the Fourteenth Amendment’s

Equal Protection Clause and Title IX. Hecox is a male

who identifies as female and wished to compete on the

Boise State University women’s track and crosscountry teams. App.20a. Doe was a female highschool athlete who challenged the Act’s sexverification provision.1 Ibid. The Idaho Attorney

General’s Office defended the Fairness Act on behalf

of the State Petitioners; Madison Kenyon and Mary

Marshall intervened to defend the law. App.21a.

The district court preliminarily enjoined the

Fairness Act so Hecox could try out for BSU’s women’s

cross-country and track teams. The court said the

Fairness Act “on its face discriminates between cisgender athletes, who may compete on athletic teams

consistent with their gender identity, and transgender women athletes, who may not compete on

athletic teams consistent with their gender identity.”

App.232a–33a. For the court, “the physiological

differences” between males and females “do not

overcome the inescapable conclusion that the Act

discriminates on the basis of transgender status.”

App.233a. And the court thought that the Act failed

heightened scrutiny because no male athletes had yet

won women’s events in Idaho and sports equality “is

not jeopardized” by letting men who suppress their

testosterone compete against women. App.239a–41a.

1 Doe’s claim is now moot, App.121a n.17, but the Ninth Circuit

held that Hecox’s challenge to the Fairness Act as a whole

encompasses the challenge to the Act’s sex-verification

provision, App.52a n.16.

8

The Ninth Circuit affirmed the injunction.

App.61a. Agreeing with the district court but parting

ways with the en banc Eleventh Circuit, the panel

adopted a subjective definition of sex based on gender

identity and held that laws drawing sex-based

distinctions in schools function as “proxy discrimination” against transgender athletes. App.33a (cleaned

up). The panel also split with numerous circuits by

holding that transgender status is at least a quasisuspect class. App.36a. After subjecting the Fairness

Act to heightened scrutiny, the court concluded that

Idaho lacked a valid interest in ensuring separate

athletic teams and spaces for women and girls—again

splitting from other circuits and even from previous

Ninth Circuit decisions. App.40a–45a (attempting to

distinguish Clark I ). As a result, the court held all the

Act’s provisions were unconstitutional. App.55a.

After the panel affirmed the entirety of the district

court’s injunction—which prevented Idaho from

enforcing its Act against anyone, not just Hecox,

App.127a–30a—it later amended its opinion following

this Court’s decision in Labrador v. Poe, 144 S. Ct. 921

(2024), and directed the district court to determine

the injunction’s proper scope on remand, App.61a.

Even so, the panel hinted that a universal injunction

might still be proper: “We do not agree with the

Intervenors, however, that the preliminary injunction

would necessarily be overbroad as a matter of law if it

extends to nonparties despite the district court’s

dismissal of [Hecox]’s facial challenge.” App.58a.

Because the interests at stake here are so great,

and because this case already has taken years to wind

its way through the lower courts, Petitioners seek this

Court’s immediate review.

9

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s decision deepens and

widens two circuit splits, each of which

warrants this Court’s review.

The Ninth Circuit’s decision exacerbates two

separate circuit splits over the Equal Protection

Clause’s application to sex-based distinctions. Each

split independently warrants this Court’s review;

together, they compel it.

These splits span eleven different cases in the

courts of appeals, many with multiple opinions. The

splits have presented in a variety of different factual

contexts involving gender identity: sports, bathrooms,

medical procedures, birth certificates, and military

service. The splits are wide, well-developed, and

openly acknowledged, with the circuits having fully

ventilated the issues in opinions citing, following,

disagreeing with, and distinguishing the others.

These splits are also intractable. Some circuits

have committed en banc to positions that other

circuits have conclusively rejected en banc. Meanwhile, other circuits have dug more deeply into settled

positions. Nor will this Court’s decision in United

States v. Skrmetti, No. 23-477, obviate the need for

review; only one of the two splits here is presented in

Skrmetti, and Skrmetti’s analysis of whether states

can prohibit experimental and dangerous drugs for

minors will not control the outcome here. This case

presents an ideal opportunity to resolve the circuit

conflicts this case implicates and to decide whether

the Constitution prohibits the people’s elected representatives in half the states from relying on sex-based

distinctions to save women’s sports.

10

A. The Ninth Circuit widened the split over

whether sex is a subjective term in equalprotection classifications.

By applying different definitions of “sex” under the

Equal Protection Clause, the circuits have split over

whether a law that classifies based on sex discriminates against people who identify as transgender.

This Court’s equal-protection cases have uniformly treated sex as an objective concept that is

binary, inherent, and biological: there are “two sexes,”

Virginia, 518 U.S. at 533; they are “immutable,”

Frontiero v. Richardson, 411 U.S. 677, 686 (1973); and

they are defined by “our most basic biological differences,” Tuan Anh Nguyen v. INS, 533 U.S. 53, 73

(2001).

The en banc Eleventh Circuit applied that objective, biological understanding of sex to hold that a

policy that distinguished between “biological boys”

and “biological girls” is a “sex-based classification.”

Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty.,

57 F.4th 791, 801 (11th Cir. 2022). But the Fourth,

Seventh, and Ninth Circuits have all held that such

laws discriminate against those who identify as transgender. While those three circuits followed different

rationales, they all treated sex as subjective. The split

on this threshold question—foundational to all equalprotection cases alleging sex discrimination—

desperately needs resolution.

1. In Grimm, the Fourth Circuit held that a school

policy that assigned restrooms based on sex violated

the Equal Protection Clause by treating students who

identified as transgender differently because they

“fail[d] to conform to [a] sex stereotype.” Grimm v.

11

Gloucester Cnty. Sch. Bd., 972 F.3d 586, 608 (4th Cir.

2020). The proper question was whether the

plaintiff—a biological girl who identified as a boy—

“was similarly situated to other boys.” Id. at 610

(emphasis added). But in answering that question,

the Fourth Circuit relied on a subjective definition of

sex based on gender identity. Specifically, the court

rejected the school district’s position that basic

biology meant the plaintiff was not similarly situated

to biological boys. Ibid. According to the Fourth Circuit, the school’s view reflected its “own bias” by

privileging “sex-assigned-at-birth over … medically

confirmed, persistent and consistent gender identity”

to the contrary. Ibid. Having thus redefined what it

means to be a “boy,” the court concluded over Judge

Niemeyer’s dissent that the challenged policy violated

the Equal Protection Clause. Id. at 608–10, 613–16.

The Fourth Circuit recently applied the same

reasoning to a challenge to a law that, like Idaho’s

Fairness Act, designates participation in women’s

sports based on sex. B.P.J. ex rel. Jackson v. W. Va.

State Bd. of Educ., 98 F.4th 542, 556 (4th Cir. 2024).

And the Fourth Circuit’s decision to overturn a final

judgment for the State likewise turned on a subjective

definition of sex. The sole reason to define a person’s

sex “only by their reproductive biology and genetics at

birth,” the court said, was “to exclude transgender

girls from the definition of ‘female’ and thus to exclude

them from participation on girls sports teams.” Id. at

556 (cleaned up). And that meant treating “transgender girls”—a term that itself rejects the biological

understanding of sex—“differently from cisgender

girls.” Ibid. That, the court held, was “the definition

of gender identity discrimination.” Ibid.

12

Dissenting from that part of the opinion, Judge

Agee embraced a biological definition of sex. He

explained that the proper analysis required comparing the plaintiff, “a biological boy who identifie[d]

as a girl” to other “biological boy[s].” Id. at 566–67

(Agee, J., concurring and dissenting in part).

2. The Seventh Circuit has likewise defined sex

subjectively when resolving Equal Protection challenges brought by transgender plaintiffs. That court

first staked out that position in a case challenging a

school district’s policy of assigning bathrooms based

on the sex listed on the student’s birth certificate.

Whitaker ex rel. Whitaker v. Kenosha Unified Sch.

Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir.

2017). In holding that the policy violated the Equal

Protection Clause, the Seventh Circuit rejected the

argument that the policy treated “all boys and girls

the same.” Ibid. That was “untrue,” the court held,

because the policy classified students and imposed

“sex-based stereotypes” based on their “assigned sex

at birth.” Ibid. And that meant denying students who

identified differently from their “assigned sex at

birth” the choice “to use a bathroom that conform[ed]

to their gender identity.” Ibid.

That view is entrenched in the Seventh Circuit,

and it will stay that way until this Court intervenes.

Last year in a case raising similar issues, the court

wrote that “[l]itigation over transgender” issues “is

occurring all over the country,” and the court assumed

“at some point” this Court would “step in with more

guidance than it has furnished so far.” A.C. ex rel.

M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760,

764 (7th Cir. 2023). “Until then,” though, the court

would “stay the course and follow Whitaker.” Ibid.

13

3. Unlike the Fourth and Seventh Circuits, the

Eleventh Circuit’s en banc decision in Adams refused

to redefine sex, 57 F.4th at 801, 807–08, which led the

court to uphold a school district’s policy separating

restrooms based on biological sex, id. at 808–11. As

the seven-judge majority explained, that “policy

facially classifie[d] based on biological sex—not

transgender status or gender identity,” both of which

were “wholly absent from the bathroom policy’s classification.” Id. at 808. Such laws do not “single[ ] out

transgender students” because “both sides of the

classification—biological males and biological

females—include transgender students.” Ibid. And

“biological sex … is not a stereotype.” Id. at 809. This

Court “has repeatedly recognized the biological

differences between the sexes by grounding its sexdiscrimination jurisprudence on such differences.”

Ibid. So to say that a policy “relies on impermissible

stereotypes because it is based on the biological

differences between males and females is incorrect.”

Id. at 810. And as Judge Lagoa’s concurrence

explained, that reasoning applies equally to sports

policies like the Fairness Act. Id. at 817–21 (Lagoa,

J., specially concurring).

Though dissenting opinions urged the majority to

adopt the Fourth and Seventh Circuits’ approaches,

id. at 821–24 (Wilson, J., dissenting); id. at 824–30

(Jordan, J., dissenting); id. at 830–32 (Rosenbaum, J.,

dissenting); id. at 832–60 (J. Pryor, J., dissenting), the

majority expressly rejected them, id. at 807–08.

“[C]ontrary to the dissent’s claims,” this was “a case

about the constitutionality and legality of separating

bathrooms by biological sex.” Id. at 808. It was not a

case about “gender identity.” Ibid.

14

4. The Ninth Circuit’s decision here exacerbated

this pre-existing circuit split by joining the Fourth

and the Seventh Circuits in subjectively defining sex

to include notions of gender identity.

Indeed, the Ninth Circuit’s decision was the most

full-throated opinion yet rejecting the traditional

definition of sex. It stated that the biological and

objective understanding of sex embodied in the

Fairness Act “is likely an oversimplification of the

complicated biological reality of sex and gender,” a

reality that it found depends on “secondary sex

characteristics[ ] and gender identity.” App.99a

(cleaned up, emphasis added). “[T]he ratifiers of the

Fourteenth Amendment,” the panel reasoned, would

“not have understood the Fairness Act’s definition of

‘biological sex’” or “how ‘genetic makeup’ influences

sex.” App.29a n.9. Today, the Ninth Circuit said,

biological sex is not “a neutral and well-established

medical and legal concept.” App.29a. So it concluded

the Fairness Act’s definition of sex must have been

artificially “designed” “to exclude transgender and

intersex people.” App.29a.

The Ninth Circuit held that the Fairness Act thus

classifies based on both sex and transgender status,

and that “the law is directed at excluding women and

girls who are transgender,” meaning males who

identify as women and girls, “rather than on

promoting sex equality and opportunities for women.”

App.26a (cleaned up). And by referring to males who

identify as female using the phrase “women and girls

who are transgender,” the Ninth Circuit left no doubt

that it rejected the traditional definition of sex in

favor of an identity-based construct.

15

***

This split on a basic definitional question of equalprotection jurisprudence warrants this Court’s

review. And it warrants this Court’s review now. As

the Seventh Circuit observed in A.C., “[m]uch of what

is needed to resolve this conflict is present in the

majority opinion and four dissents offered by the

Eleventh Circuit in Adams.” 75 F.4th at 771. And the

Ninth Circuit’s decision below and the Fourth

Circuit’s decision in B.P.J.—including Judge Agee’s

thoughtful dissent—offer additional insights.

Granting review here matters not just to cases like

this one involving women’s sports, but to any law that

contains a classification by sex. Since sex is one of just

two quasi-suspect classes this Court has recognized,

how that class is defined—and in particular, whether

it is fixed and objective—has great bearing on how

this Court and the lower courts apply intermediate

scrutiny in Equal Protection cases. Circuit conflict

over the meaning of a fundamental term that courts

must apply every day cannot wait for review.

Finally, Skrmetti does not implicate and will not

resolve this split. That case asks whether a statute

that regulates medical procedures and refers to sex

necessarily classifies based on sex or transgender

status. Pet. for Writ of Cert. at i, 18, 24, United States

v. Skrmetti, No. 23-477 (Nov. 6, 2023). In contrast,

this case implicates a more fundamental question:

what does sex mean for purposes of the Equal

Protection Clause? Skrmetti does not directly present

that question, yet that issue warrants immediate

review.

16

B. The Ninth Circuit also deepened the split

over whether transgender identity is a

quasi-suspect class.

The circuits are also split over whether gender

identity or transgender identity are quasi-suspect

classifications that trigger intermediate scrutiny.

The Fourth Circuit has held that those who

identify as transgender “constitute at least a quasisuspect class.” Grimm, 972 F.3d at 607. And that

court has doubled down on that decision in two

subsequent rulings, including one en banc. B.P.J., 98

F.4th at 555–56; Kadel v. Folwell, 100 F.4th 122, 143

(4th Cir. 2024) (en banc). Likewise the Ninth Circuit,

after first hinting that transgender identity requires

elevated scrutiny five years ago, Karnoski v. Trump,

926 F.3d 1180 (9th Cir. 2019) (per curiam), expressly

held here “that heightened scrutiny applies to laws

that discriminate on the basis of transgender status”

because “gender identity is at least a ‘quasi-suspect

class.’” App.36a (cleaned up).

In contrast, the Tenth Circuit has held that transgender identity is not a quasi-suspect classification.

Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995).

See also Fowler v. Stitt, 104 F.4th 770, 794 (10th Cir.

2024). And Chief Judge Sutton’s opinion for the Sixth

Circuit in Skrmetti also held that transgender

identity is not quasi-suspect. L.W. ex rel. Williams v.

Skrmetti, 83 F.4th 460, 486 (6th Cir. 2023). Meanwhile, the en banc Eleventh Circuit in Adams

expressed “grave ‘doubt’ that transgender persons

constitute a quasi-suspect class.” 57 F.4th at 803 n.5;

accord Eknes-Tucker v. Governor of Ala., 80 F.4th

1205, 1230 (11th Cir. 2023).

17

This split also warrants review. Skrmetti may not

resolve this question—indeed, other circuits have

both upheld and rejected state laws like the one in

Skrmetti without making any determination about a

quasi-suspect class. Compare Eknes-Tucker, 80 F.4th

at 1230 (finding it unnecessary to resolve that issue),

with Brandt v. Rutledge, 47 F.4th 661, 670 n.4 (8th

Cir. 2022) (discerning “no clear error in the district

court’s factual findings underlying [its] legal conclusion” that a law discriminating against “transgender

people” deserves heightened scrutiny). This case

presents a clean vehicle for this Court to resolve the

split and provide much-needed clarity to the lower

courts on this recurring question.

II. The Ninth Circuit’s decision was egregiously wrong and conflicts with this Court’s

precedents.

This Court should also grant review because the

decision below is egregiously wrong on a constitutional issue of deep importance: whether states can

preserve fairness in women’s sports. In deciding that

question, the Ninth Circuit’s opinion conflicts with

this Court’s caselaw at every turn.

A. This Court’s cases establish that sex is

binary, biological, and immutable.

The Ninth Circuit rejected the objective, biological

definition of sex as “an oversimplification,” App.30a,

treating sex instead as a flexible construct that varies

according to “a person’s sense of being male, female,

neither, or some combination of both,” App.13a. That

holding contradicts this Court’s equal-protection

cases on sex discrimination.

18

Those cases universally regard sex as an

“immutable characteristic,” Frontiero, 411 U.S. at

686, defined by “our most basic biological differences,”

Nguyen, 533 U.S. at 73. “The difference between men

and women … is a real one,” ibid., and should be a

“cause for celebration,” Virginia, 518 U.S. at 533. And

it is precisely because sex is fixed that this Court

subjects sex classifications to intermediate scrutiny.

Clark v. Jeter, 486 U.S. 456, 461 (1988); Miss. Univ.

for Women v. Hogan, 458 U.S. 718, 725 (1982).

Making sex subjective negates the rationale for giving

it that higher scrutiny.

This objective understanding of sex is controlling

for equal-protection claims. It dooms any equalprotection analysis founded on the modern construct

of gender identity, which was not even considered

when the Equal Protection Clause was ratified in

1868. Carl R. Trueman, The Rise and Triumph of the

Modern Self 350–57 (2020) (the concept of gender

identity did not emerge in an academic setting until

the late 20th century, and in popular understanding,

only within the last decade).

Yet the Ninth Circuit brushed aside this settled

understanding, suggesting that the law has been

superseded by science. “[T]he drafters of the

Fourteenth Amendment,” it theorized, “would have

had no concept of what ‘endogenously produced

testosterone levels’ meant in 1868.” App.29a n.9. But

that only proves the point as to the controlling

definition of sex: when the Equal Protection Clause

was adopted, sex was understood to be fixed and

immutable, a biological reality determined by

reproductive roles. Male, WEBSTER’S DICTIONARY

(1828) (defining male as “[p]ertaining to the sex that

19

procreates young”); Female, WEBSTER’S DICTIONARY

(1828) (defining female as “one of that sex which

conceives and brings forth young”). Allowing the

Ninth Circuit’s decision to stand would revolutionize

constitutional jurisprudence by inviting courts to

invoke “scientific” expert opinion to subvert and

displace existing constitutional bedrock.

What’s more, the Ninth Circuit’s analysis is

scientifically faulty. Even the medical organizations

that support transgender causes recognize the

traditional definition of sex as the “biological indication of male and female (understood in the context of

reproductive capacity), such as sex chromosomes,

gonads, sex hormones, and nonambiguous internal

and external genitalia.” Am. Psychiatric Ass’n,

Diagnostic & Statistical Manual of Mental Disorders

829 (5th ed. 2013). While “gender dysphoria” is a real

mental-health issue, a person’s subjective feelings do

not change their sex, and there is no scientific basis

to believe that men who identify as women are really

women. J. Michael Bailey & Kiira Triea, What Many

Transgender Activists Don’t Want You to Know: And

Why You Should Know it Anyway, 50 Perspectives in

Biology and Medicine 521–34 (Fall 2007).

The Ninth Circuit wrongly supposed that a law

using the traditional definition of sex imposes a sexbased stereotype. But such laws do “not depend in any

way on how students act or identify,” but rather

classify “based on biological sex, which is not a

stereotype.” Adams, 57 F.4th at 809. Contra App.37a.

20

Nor is there merit to the Ninth Circuit’s holding

that the Fairness Act’s use of the traditional understanding of sex “functions as a form of proxy

discrimination.” App.33a (cleaned up). Proxy

discrimination occurs if a law discriminates based on

a characteristic that is coextensive with a suspect

class—as with “[a] tax on wearing yarmulkes.” Bray

v. Alexandria Women’s Health Clinic, 506 U.S. 263,

270 (1993). Accord Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 275 (1979). In contrast, the Fairness Act’s

sex criteria apply to activities—sports—that are not

“engaged in exclusively or predominantly by” the

“class” of individuals who identify as transgender.

Bray, 506 U.S. at 270. The Act sets sports

participation based on sex, and transgender identity

is a “distinct concept[ ] from sex.” Bostock v. Clayton

Cnty., 590 U.S. 644, 669 (2020).

The Ninth Circuit’s re-imagining of the meaning

of sex under the Equal Protection Clause defies this

Court’s precedents, history, science, and logic. That

mistaken view is ripe for review here, and this Court

should correct it.

B. The Ninth Circuit flouted this Court’s

intermediate-scrutiny jurisprudence.

The Fairness Act uses a straightforward, biologically based sex distinction to assign school sports

teams. The Ninth Circuit previously considered such

a distinction and readily upheld it under intermediate

scrutiny. Clark I, 695 F.2d at 1129–32. But it missed

the mark this time because its application of intermediate scrutiny was seriously flawed and again in

conflict with this Court’s precedents.

21

Intermediate scrutiny requires that laws serve

“important governmental objectives” and employ

means “substantially related to the achievement of

those objectives.” Virginia, 518 U.S. at 533 (cleaned

up). The Fairness Act does both.

Idaho has not just an important interest in

providing equal athletic opportunities for women and

girls—it has a compelling one. See B.P.J., 98 F.4th at

570 (Agee, J., concurring and dissenting in part). As

the Idaho Legislature explained, separating sports

teams based on sex furthers the State’s interest in

promoting “equality” for women “by providing opportunities for female athletes to demonstrate their skill,

strength, and athletic abilities” and “to obtain

recognition and accolades, college scholarships, and …

other long-term benefits.” Idaho Code § 33-6202(12).

No one has disputed the importance of this interest.

App.40a.

Idaho’s preservation of a separate space for

females to compete is also substantially related to its

goals. “Given how biological differences affect typical

outcomes in sports, ensuring equal opportunities for

biological girls in sports requires that they not have

to compete against biological boys.” B.P.J., 98 F.4th

at 571 (Agee, J., concurring and dissenting in part).

As Justice Stevens recognized decades ago, without

this protection, boys will “dominate the girls’ programs and deny them the equal opportunity to

compete in interscholastic events.” O’Connor v. Bd. of

Educ. of Sch. Dist. 23, 449 U.S. 1301, 1307 (1980)

(Stevens, J., in chambers).

22

Given the importance biology plays in sports, sex

is a reasonable classification. As Judge Lagoa

explained in Adams, “it is neither myth nor outdated

stereotype that there are inherent differences”

between males and females and that “those born male

… have physiological advantages in many sports.”

Adams, 57 F.4th at 819 (Lagoa, J., specially

concurring). Multiple studies confirm that irreversible physiological differences exist between biological

males and females that give male athletes significant

advantages over their female competitors. Id. at 819–

20 (citing studies). As a result, allowing “a biological

male,” regardless of how that individual identifies, “to

try out for and compete on a [women’s] sports team”

“significantly undermine[s] the benefits afforded to

female student athletes.” Id. at 819. Idaho therefore

has more than a reasonable interest in using sex as a

classification here.

Rather than apply the intermediate-scrutiny

standard that this Court has developed, the Ninth

Circuit subjected the Fairness Act to something more

akin to strict scrutiny.

Start with the state’s interest. Though claiming to

accept as legitimate Idaho’s interest in promoting

women’s athletics, the court treated that interest as a

cover for discrimination. App.33a. The court also

faulted Idaho for having no in-state “record of transgender women and girls participating in competitive

women’s sports.” App.16a, 51a, 85a. But Idaho

legislators were reasonably concerned that what had

happened in other states could just as easily happen

in Idaho. And Intervenors—female college athletes in

Idaho—were forced to compete against a man at an

out-of-state meet. App.21a.

23

More important, intermediate scrutiny does not

require manifest harm before a state can regulate.

Rather, intermediate scrutiny gives states like Idaho

the breathing room to act prophylactically based on

“predictive judgment.” Brown v. Ent. Merchs. Ass’n,

564 U.S. 786, 799 (2011).

In addition to getting Idaho’s interest wrong, the

Ninth Circuit erroneously imposed a narrow-tailoring

requirement, faulting Idaho for classifying by sex, not

circulating testosterone levels. App.97a–98a. Under

intermediate scrutiny, though, a classification need

not achieve the state’s “ultimate objective in every

instance.” Nguyen, 533 U.S. at 70. Instead, it need

only use a “fit” that, while not necessarily “perfect,” is

“reasonable.” Bd. of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 469, 480 (1989) (cleaned up).

Put simply, intermediate scrutiny does not require

the State to adopt the alternatives the Ninth Circuit

proposed. Intermediate scrutiny does not require a

“reasonable decisionmaker” to select “the most appropriate method for promoting significant government

interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S.

180, 218 (1997) (cleaned up). So while the Ninth

Circuit may find testosterone-based classifications to

be “more inclusive,” “it is not for the court to impose

such a requirement.” B.P.J. v. W. Va. State Bd. of

Educ., 649 F. Supp. 3d 220, 232 (S.D. W. Va. 2023).

Accord Clark I, 695 F.2d at 1131 (“We recognize that

specific athletic opportunities could be equalized more

fully in a number of ways. … The existence of these

alternatives shows only that the exclusion of boys is

not necessary to achieve the desired goal. It does not

mean that the required substantial relationship does

not exist.”).

24

Intermediate scrutiny gives the state breathing

room to choose “trade-offs between equality and

practicality.” Id. at 1131–32. So the State need not

“maximize equality” in its line-drawing. Ibid. In any

event, the panel’s preferred policy alternatives, such

as dividing sports based on circulating testosterone

levels, would not ensure fair competition. Excerpts of

Record at 427, Expert Declaration of Gregory Brown,

Ph.D., Hecox v. Little, __ F.4th __ (2024) (Record Nos.

20-35813, 20-35815).

For similar reasons, the panel wrongly focused on

the effect of allowing Hecox alone to compete in

women’s sports. “[T]he validity of the [Fairness Act]

depends on the relation it bears to the overall problem

the government seeks to correct, not on the extent to

which it furthers the government’s interests in an

individual case.” Ward v. Rock Against Racism, 491

U.S. 781, 801 (1989) (emphasis added).

Under intermediate scrutiny, this Court has

“consistently upheld statutes where the gender classification [was] not invidious, but rather realistically

reflect[ed] the fact that the sexes are not similarly

situated in certain circumstances.” Clark I, 695 F.2d

at 1129 (quoting Michael M. v. Super. Ct. of Sonoma

Cnty., 450 U.S. 464, 469 (1981)). To hold otherwise

here, the Ninth Circuit accepted arguments that were

previously thought “ludicrous” while ratcheting

intermediate scrutiny up to levels impossible to

satisfy. Michael M., 450 U.S. at 475. In so doing, the

court called into question the constitutionality of

similar laws in 24 other states. This Court should

grant review and reverse the Ninth Circuit’s improper

application of intermediate scrutiny.

25

The Ninth Circuit’s intermediate-scrutiny analysis also failed to consider relevant history and tradition. “If a thing has been practised for two hundred

years by common consent, it will need a strong case

for the Fourteenth Amendment to affect it.” Sun Oil

Co. v. Wortman, 486 U.S. 717, 730 (1988) (quoting

Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922)).

Women’s sports teams have existed since the late

19th century to give “female athletes” space “to

flourish.” Maria Cramer, How Women’s Sports Teams

Got Their Start, N.Y. Times (Apr. 28, 2022). Because

the Fairness Act is consistent with these longstanding

practices, United States v. Rahimi, No. 22-915, 2024

WL 3074728, at *10 (U.S. June 21, 2024), only an

exceptionally compelling case can override the statute

under intermediate scrutiny, e.g., Adams, 57 F.4th at

796 (deferring to tradition and historical practice in

rejecting a challenge to the “unremarkable—and

nearly universal—practice of separating school bathrooms based on biological sex”). The Ninth Circuit did

not come close to making such a case. Its decision

warrants immediate review.

C. The Ninth Circuit wrongly focused on

transgender identity and misapplied this

Court’s precedents by treating it as a

quasi-suspect class.

The Ninth Circuit did not analyze the Fairness Act

as a straightforward sex-based distinction. Instead, it

analyzed the law as if it discriminated based on

transgender identity. It could do so only by ignoring

this Court’s precedents.

26

Only two paths would have allowed the Ninth

Circuit to conduct its equal-protection analysis based

on transgender identity. The first requires a law that

facially discriminates based on that classification. See

Califano v. Boles, 443 U.S. 282, 293–94 (1979) (“The

proper classification for purposes of equal protection

analysis … begin[s] with the statutory classification

itself.”). But the only facial distinction that the

Fairness Act draws is based on sex.

The second path requires a legislature acting with

an “invidious” purpose to discriminate based on transgender identity. Feeney, 442 U.S. at 274. Accord

Washington v. Davis, 426 U.S. 229, 239 (1976) (“A

purpose to discriminate must be present.” (cleaned

up)). But no such purpose is present here. The

Fairness Act’s purpose is “to promote … equality” for

females “by providing opportunities for [them] to

demonstrate their skill, strength, and athletic

abilities” and “to obtain recognition and accolades.”

Idaho Code § 33-6202(12).

At the same time, the Act allows many athletes

who identify as transgender—namely, biological

females who identify as males—to play women’s

sports. It strains credulity to conclude that such a law

has the purpose of discriminating against people who

identify as transgender. The Ninth Circuit thus

violated this Court’s directives by analyzing the

Fairness Act as if it discriminated based on

transgender identity.

27

Regardless, the Ninth Circuit was wrong to treat

transgender identity as a new quasi-suspect class.

This Court has not recognized a new quasi-suspect

class in over 40 years, and it has been “reluctant” to

do so “where individuals in the group affected by a law

have distinguishing characteristics relevant to

interests the State has the authority to implement.”

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

441–42 (1985). Yet without acknowledging Cleburne’s

caution or even applying the test for a quasi-suspect

class, the Ninth Circuit simply declared it to be so.

Karnoski, 926 F.3d at 1200; App.36a. That unreasoned pronouncement on such a consequential

point of law requires review.

The Sixth Circuit’s Skrmetti decision shows why

transgender identity cannot satisfy the relevant test.

Chief Judge Sutton began with the premise that “[t]he

bar for recognizing a new suspect class is a high one.”

83 F.4th at 486. And that “hesitancy makes sense”

considering the many “line-drawing dilemmas”

associated with transgender identity. Ibid. Those

dilemmas implicate various factual contexts,

including “[b]athrooms and locker rooms,” “[s]ports

teams and sports competitions,” and others that are

“sure to follow.” Ibid. “Removing these trying policy

choices from fifty state legislatures … runs the risk of

making them harder to solve.” Id. at 486–87.

Transgender identity also lacks the characteristics

of a quasi-suspect class. For one, it is not an “obvious,

immutable, or distinguishing characteristic[ ] that

define[s] … a discrete group.” Bowen v. Gilliard, 483

U.S. 587, 602 (1987). “Unlike existing suspect classes,

[it] is not definitively ascertainable at the moment of

birth.” Skrmetti, 83 F.4th at 487 (cleaned up). Nor is

28

it “immutable” because, as “detransitioners” attest,

many people leave the group, ibid., often with

irreversible damage and grave regret. And far from

being a “discrete group,” Bowen, 483 U.S. at 602,

transgenderism describes “a huge variety of gender

identities and expressions,” Skrmetti, 83 F.4th at 487

(cleaned up).

Nor does a transgender identity mark a group

lacking “political power[ ].” San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). The federal

government, many states, and major medical

organizations all support people who identify as

transgender. Skrmetti, 83 F.4th at 487. For these

reasons, the Sixth Circuit correctly held that

transgender identity is not a quasi-suspect

classification. Id. at 486. The Ninth Circuit erred in

holding otherwise here.

The Ninth Circuit’s only reasoning was its prior

caselaw applying elevated scrutiny to “‘government

attempts to intrude upon the personal and private

lives of homosexuals.’” Karnoski, 926 F.3d at 1200

(quoting Witt v. Dep’t of the Air Force, 527 F.3d 806,

819 (9th Cir. 2008)). But whatever the merits of those

prior decisions, any such standard is irrelevant to the

issues of participation in sports presented by this

case. This Court should grant review and reverse.

29

III. This case is an ideal vehicle for resolving

important equal-protection issues and

entrenched circuit splits.

This case cleanly presents the issue whether

designating sports teams based on biological sex

violates the Equal Protection Clause because that was

the sole ground that the district court and the Ninth

Circuit relied on for their decisions. There are no

disputes of material fact. And the Ninth Circuit

issued a comprehensive analysis that took sides in

multiple circuit splits. No amount of further

percolation is necessary. And the case was brought by

a private plaintiff, so there is no possibility that a

subsequent change in the federal government’s

approach to regulating high-school and college

athletic teams will moot the question presented.

Moreover, this petition presents an even better

vehicle when paired with the request for review in

West Virginia’s women’s sports case, State of West

Virginia v. B.P.J., No. 23-___. That petition presents

the Court an opportunity to resolve a private-party

Title IX challenge to state laws that designate

women’s sports teams based on sex.

It makes eminent sense to resolve the equalprotection and Title IX challenges to laws like Idaho’s

and West Virginia’s in one fell swoop rather than

addressing those issues in separate cases heard in

separate terms. That is the approach this Court took

when deciding whether college affirmative-action

programs violate either equal protection or Title VI.

See Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181 (2023). It

should do the same here.

30

Hecox’s complaint also included a Title IX claim.

Compl. at 50–52, Hecox v. Little, 479 F. Supp. 3d 930

(D. Idaho 2020) (No. 1:20-cv-00184). So while neither

the district court nor the Ninth Circuit have yet

addressed that Title IX claim in this case, the issue

will have to be resolved eventually if this Court holds

that Hecox’s equal-protection claim is unlikely to

succeed. After all, the two can’t stand in conflict. And

by granting both this petition and the petition in

B.P.J., the Court can ensure that it fully resolves both

the equal-protection and Title IX questions raised by

state laws protecting women’s sports—along with the

many circuit conflicts discussed in both petitions.

Similarly, granting certiorari only in B.P.J. might

prevent the Court from resolving the constitutionality

of applying these women’s sports laws in a broad

range of common factual contexts. According to the

Fourth Circuit, the middle-school athlete who

challenged West Virginia’s law “has never felt the

effects of increased levels of circulating testosterone”

that puberty produces. B.P.J., 98 F.4th at 561.

By contrast, Hecox is a college athlete who has

gone through male puberty. App.49a. And this Court

should have the opportunity to resolve a challenge

brought by a male athlete who has gone through

puberty and enjoys the resulting physiological

advantages like increased bone size, heart size, and

lung volume that hormone therapy cannot reverse.

Excerpts of Record at 427, Expert Declaration of

Gregory Brown, Ph.D., Hecox v. Little, __ F.4th __

(2024) (Record Nos. 20-35813, 20-35815).

31

The substantial overlap between the equalprotection and Title IX issues provides yet another

reason to decide this case and B.P.J. together.

Consistent with the Equal Protection framework

outlined above, Title IX leveled the playing field for

women and girls; it did not force them to the sidelines

as men who identify as women take their place. Yet

the Ninth Circuit’s equal-protection reasoning is

analogous to the Fourth Circuit’s Title IX analysis in

B.P.J. Both cases should be considered together.

Finally, the Court should grant the petition here

and in B.P.J. notwithstanding the recent grant in

Skrmetti for at least four reasons.

First, Skrmetti will not answer the question

presented by the first circuit split in this case: how to

define sex under the Equal Protection Clause. The

United States’ petition in Skrmetti does not ask this

Court to adopt the amorphous definition of “sex” the

Ninth Circuit adopted below. Instead, that petition

argues heightened scrutiny applies to a law prohibiting experimental and dangerous treatments for

minors because the law (1) relies on sex-based classifications, or (2) discriminates against a quasi-suspect

class. Pet. for Writ of Cert. at 18–23, 24–25 United

States v. Skrmetti, No. 23-477. So Skrmetti will not

resolve what sex means under the Equal Protection

Clause.

32

Second, Skrmetti will not say how much deference

the states receive when they protect women’s sports.

As explained above, the Ninth Circuit gave no such

deference here, instead reimagining how athletic

teams can be assigned based on circulating

testosterone levels. Skrmetti does not touch these

issues.

Third, even if this Court were to apply heightened

scrutiny in Skrmetti—despite lower courts deciding

the validity of laws like Tennessee’s Senate Bill 1

without deciding that heightened scrutiny applies—

the resulting analysis would shed little light on how

heightened scrutiny should be applied to women’s

sports laws. The strength of the government’s interest

in safeguarding minors from experimental and

dangerous procedures is necessarily different than its

interest in providing a safe and level playing field in

sports. And whether laws like Tennessee’s Senate

Bill 1 and Idaho’s Fairness in Women’s Sports Act are

narrowly tailored to advance those respective

interests requires an independent analysis.

Fourth, this case and B.P.J. include Title IX

claims, providing yet another reason to grant these

petitions in addition to Skrmetti, which does not. The

Court should grant review here to ensure it can

address the important Title IX issues currently

roiling the lower courts, female athletes and students,

and every level of government.

***

33

Both this case and B.P.J. present critically

important questions. Female athletes deserve to

compete on a level playing field. Allowing males who

identify as females to compete in women’s and girls’

sports destroys fair competition, safety, and women’s

athletic opportunities. Female athletes are losing

medals, podium spots, public recognition, and

opportunities to compete due to males who insist on

participating in women’s sports. So much of what

women and girls have achieved for themselves over

the course of several decades is being stolen from

them—all under the guise of “equality.”

In recent years, half the states have taken

important steps to correct these injustices. But unless

and until this Court acts, those efforts will continue

to be thwarted by courts that insist on redefining sex,

treating transgender identity as a quasi-suspect

class, and misapplying this Court’s intermediatescrutiny test. The Court should not wait any longer to

correct these mistakes and to return the issue of

protecting women’s sports to the people’s elected

representatives.

34

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JAMES A. CAMPBELL

JOHN J. BURSCH

LINCOLN DAVIS WILSON

CHRISTOPHER P.

SCHANDEVEL

CODY S. BARNETT

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(202) 393-8690

Counsel for

Petitioners

JULY 2024

RAÚL R. LABRADOR

ATTORNEY GENERAL

ALAN M. HURST

SOLICITOR GENERAL

Counsel of Record

JOSHUA N. TURNER

JAMES E.M. CRAIG

700 W Jefferson St #210

Boise, ID 83720

alan.hurst@ag.idaho.gov

(208) 332-3548

Counsel for State

Petitioners