Amicus Curiae Brief — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson

Nos. 24-38 and 24-43

In the

Supreme Court of the United States

BRADLEY LITTLE, GOVERNOR OF IDAHO, et al.,

Petitioners,

v.

LINDSAY HECOX, et al.,

Respondents.

WEST VIRGINIA, et al.,

Petitioners,

v.

B. P. J., BY HER NEXT FRIEND AND MOTHER,

HEATHER JACKSON,

Respondent.

On Writs of Certiorari to the United States Courts

of A ppeals for the Fourth and Ninth Circuits

BRIEF OF PRESIDENT PRO TEMPORE OF THE

IDAHO SENATE KELLY ANTHON AND SPEAKER

OF THE IDAHO HOUSE OF REPRESENTATIVES

MIKE MOYLE AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

Judd E. Stone II

Counsel of Record

Christopher D. Hilton

A ri Cuenin

Cody C. Coll

Stone Hilton PLLC

600 Congress Avenue, Suite 2350

Austin, TX 78701

judd@stonehilton.com

(737) 465-3897

Counsel for Amici Curiae

385552

A

(800) 274-3321 • (800) 359-6859

QUE STION P RE SENTED

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 or Title IX of the Education Amendments of 1972.

(I)

II

TABL E OF C O NTENTS

Page

Question Presented ......................................................... I

Table of Contents ........................................................... II

Table of Authorities ..................................................... III

Interest of Amici Curiae ................................................. 1

Summary of Argument ................................................... 1

Argument ......................................................................... 3

I. Idaho’s Fairness in Women’s Sports Act, Like

Its Analogues in West Virginia and Other

States, Properly Protects Compelling Fairness

Interests. .............................................................. 4

II. Preserving Laws Like Those in Idaho and

West Virginia Serves the Aims of Federalism. 7

III. The Court Should Carefully Police Restraints

on Federal Spending Power in the StudentAthlete Context.................................................. 15

Conclusion ...................................................................... 19

III

TABL E OF AU THORI TIE S

Page(s)

Cases:

Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy,

548 U.S. 291 (2006) .................................................... 18

Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cnty. v. Rowley,

458 U.S. 176 (1982) ...................................................... 6

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ...................................................... 9

Bond v. United States,

564 U.S. 211 (2011) ................................................ 8, 13

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ...................................................... 7

Christian Legal Society v. Martinez,

561 U.S. 661 (2010) ...................................................... 6

Clark ex rel. Clark v. Ariz. Interscholastic Ass’n,

695 F.2d 1126 (9th Cir. 1982) ................................. 1, 7

F.T.C. v. Ticor Title Ins. Co.,

504 U.S. 621 (1992) .............................................. 10, 11

Franchise Tax Bd. v. Hyatt,

587 U.S. 230 (2019) ...................................................... 9

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................ 8, 9, 14

Healy v. Beer Inst.,

491 U.S. 324 (1989) .................................................... 10

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................... 15

Michael M. v. Superior Court,

450 U.S. 464 (1981) ...................................................... 6

IV

Moyle v. United States,

603 U.S. 324 (2024) .......................................... 3, 17, 18

Murphy v. Nat’l Collegiate Athletic Ass’n,

584 U.S. 453 (2018) .................................................... 16

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .................................. 13, 16, 17, 18

New York v. United States,

505 U.S. 144 (1992) .................................................. 2, 8

Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981) ........................................................ 17

Printz v. United States,

521 U.S. 898 (1997) ................................................ 8, 14

S.-Cent. Timber Dev., Inc. v. Wunnicke,

467 U.S. 82 (1984) ...................................................... 10

Sossamon v. Texas,

563 U.S. 277 (2011) .................................................... 17

South Dakota v. Dole,

483 U.S. 203 (1987) .................................................... 17

United States v. Lopez,

514 U.S. 549 (1995) .................................................... 10

United States v. Virginia,

518 U.S. 515 (1996) .................................................. 4, 5

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ...................................................... 17

Zeyen v. Boise Sch. Dist. No. 1,

522 F. Supp. 3d 788 (D. Idaho 2021) ....................... 12

Constitutional Provisions and Statutes:

U.S. CONST. Amend. X ........................................... 16, 17

U.S. CONST. art. I, § 8 ................................................... 16

IDAHO CONST. art. IX, sec. 1 ........................................ 12

Cal. Educ. Code § 221.5(f) .............................................. 2

Idaho Code § 33-6202(1)-(10) ......................................... 5

V

Idaho Code § 33-6202(6), (10) ........................................ 5

Idaho Code § 33-6202(11) ............................................... 7

Idaho Code § 33-6202(12) ............................................... 7

Idaho Code § 33-6203 ...................................................... 2

Idaho Code § 33-6203(1)-(2) ........................................... 5

Other Authorities:

Anne C. Dailey, Federalism and Families,

143 U. PA. L. REV. 1787 (1995) ................................. 14

Bradford R. Clark, Putting the Safeguards Back

into the Political Safeguards of Federalism,

80 TEX. L. REV. 327 (2001) .................................. 13-14

Calvin R. Massey, The Tao of Federalism,

20 HARV. J.L. & PUB. POL’Y 887 (1997) ................... 13

D. Bruce La Pierre, Political Accountability in

the National Political Process—the

Alternative to Judicial Review of Federalism

Issues, 80 NW. U. L. REV. 577 (1985) ..................... 13

Doriane Coleman, Martina Navratilova, et al.,

Pass the Equality Act, But Don’t Abandon

Title IX, WASHINGTON POST (Apr. 29, 2019) ........... 5

Edward L. Rubin & Malcolm Feeley,

Federalism: Some Notes on a National

Neurosis, 41 UCLA L. REV. 903 (1994) .................. 11

Gil Seinfeld, Reflections on Comity in the Law of

American Federalism,

90 NOTRE DAME L. REV. 1309 (2015) ........................ 9

Ilya Somin, Foot Voting, Federalism, and

Political Freedom, 55 NOMOS 83 (2014) ................. 14

Larry D. Kramer, Putting the Politics Back into

the Political Safeguards of Federalism, 100

COLUM. L. REV. 215 (2000) ......................................... 9

VI

Lynn A. Baker & Ernest A. Young, Federalism

and the Double Standard,

51 Duke L.J. 75 (2001) ........................................ 11, 12

Margaret Meriwether Cordray, The Limits of

State Sovereignty and the Issue of Multiple

Punitive Damages Awards,

78 ORE. L. REV. 275 (1999) ......................................... 9

Martin H. Redish, THE CONSTITUTION AS

POLITICAL STRUCTURE (1995) ................................. 13

Michael W. McConnell, Federalism: Evaluating

the Founders’ Design,

54 U. CHI. L. REV. 1484 (1987) ........................... 11, 12

Michele E. Gilman, Presidents, Preemption, and

the States, 26 CONST. COMMENT. 339 (2010) .......... 14

Richard A. Epstein, The Constitutionality of

Proposition 8,

34 HARV. J.L. & PUB. POL’Y 879 (2011) ................... 12

THE FEDERALIST NO. 28 (Alexander Hamilton)

(Clinton Rossiter, ed. 1961) ........................................ 9

THE FEDERALIST No. 39 (James Madison)

(Clinton Rossiter, ed. 1961) ................................. 16-17

THE FEDERALIST No. 45 (James Madison)

(Clinton Rossiter ed., 1961) ...................................... 15

THE FEDERALIST NO. 47 (James Madison)

(Clinton Rossiter, ed. 1961) ........................................ 8

THE FEDERALIST No. 51 (James Madison)

(Clinton Rossiter, ed. 1961) .................................... 8, 9

THE FEDERALIST NO. 6 (Alexander Hamilton)

(Clinton Rossiter, ed. 1961) ...................................... 10

I NTEREST OF AM IC I CU RIAE 1

Amici are President Pro Tempore of the Idaho Senate Kelly Anthon and Speaker of the Idaho House of

Representatives Mike Moyle. As elected Idaho representatives, amici are committed to protecting women

and girls from discrimination in sports, protecting the

domain of policymaking tailored to matters of state concern, and ensuring fair opportunities throughout Idaho.

To those ends, Idaho enacted the Fairness in Women’s

Sports Act. And in view of compelling governmental interests in protecting 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), more than half the states in the Nation have followed suit by enacting similar laws. Amici

have a strong interest in ensuring that such vitally important state laws be properly interpreted and applied.

State legislators also have a compelling interest in ensuring that federal law is enforced as intended and consistent with principles of federalism.

S UMMARY O F A RGUME NT

Provisions like those in the Idaho Fairness in

Women’s Sports Act protect crucial interests in protecting women and girls in athletic opportunities. Reflecting

both longstanding commitments to fighting disparities in

opportunities and differences between the sexes, Idaho’s

law has become a model of legislative protections

throughout the Nation. Amici agree with petitioners: the

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and no person other than

amici or their counsel contributed money intended to fund preparing or submitting this brief.

1

1

2

Court should hold that those protections comport with

federal law and reverse the rulings below.

Amici and the success of the Fairness in Women’s

Sports Act attest to the fact that protecting student

athletes is best addressed by state policymakers, not

federal courts. Consistent with principles of federalism,

entrusting protection of women and girls in sports to

state legislative bodies prevents one State from

aggrandizing its policy preferences at the expense of

other States. That function is critical to “secur[ing] to

citizens the liberties that derive from the diffusion of

sovereign power.” New York v. United States, 505 U.S.

144, 181 (1992) (cleaned up). And, indeed, states with

competing viewpoints have enacted measures for citizens

residing in those states. See, e.g., Cal. Educ. Code

§ 221.5(f) (“A pupil shall be permitted to participate in

sex-segregated school programs and activities . . .

consistent with his or her gender identity, irrespective of

the gender listed on the pupil’s records.”). This Court

should ensure that states’ rights like those addressed in

the Fairness in Women’s Sports Act remain properly

grounded in the flexibility that state policymaking is

designed to provide.

Moreover, the issues in these cases touch on state

functions that are particularly at risk of federal

encroachment. Idaho’s Act protects women’s and girls’

sports by requiring public schools and institutions of

higher education to designate each of their sponsored

sports teams for: (1) “[m]ales, men, or boys”; (2)

“[f]emales, women, or girls”; or (3) “[c]oed or mixed.”

Idaho Code § 33-6203. These distinctions reflect policy

choices about how sports programs operate within public

schools and institutions of higher education. But for

federal funding conditions, those functions—and those

3

policy choices—would be the exclusive domain of state

lawmakers. Here, the Idaho Legislature enacted the

Fairness in Women’s Sports Act Consistent with those

serious responsibilities. Idaho should not be deemed to

have ceded its authority by accepting federal funds. As

Justice Barrett noted in Moyle v. United States, 603 U.S.

324 (2024), whether “Congress, in reliance on the

Spending Clause, can obligate recipients of federal

funds” to violate state law presents “a difficult and

consequential argument.” Id. at 336 (Barrett, J.,

concurring). States should not lose primacy over

student-athlete protections by accepting federal funds

that carry no clear contrary indication. Rather, this

Court should continue to afford due respect for the

States’ policymakers.

A RGUMENT

As legislators in the State whose Fairness in

Women’s Sports Act became the model for similar legislation nationwide, amici offer this Court three perspectives. First, amici agree that protections in acts like the

Fairness in Women’s Sports Act rightly serve compelling governmental interests in protecting women and

girls. Second, amici urge the Court to allow state policymakers the continued leeway to address such divisive

and sensitive matters without a nationally imposed

standard sounding in equal protection. Third, amici respectfully suggest that the Court should closely adhere

to restrictions on the scope of federal power, particularly

for spending-clause legislation, given that the alternative

would invite federal encroachment on traditional state

police powers where Congress could not do so directly.

4

I. Idaho’s Fairness in Women’s Sports Act, Like Its

Analogues in West Virginia and Other States,

Properly Protects Compelling Fairness Interests.

The Fairness in Women’s Sports Act emerged from

decades of progress in expanding athletic opportunities

for women and girls, coupled with a recognition of enduring biological differences between the sexes. As the sponsor of Idaho’s pioneering law has put it, “One of our society’s greatest recent triumphs is the cultural and legal

consensus in favor of women’s sports.” Br. of Rep.

Ehardt et al. in Support of Little Pet. 3. Unlike some areas of public life where equality is understood to require

identical treatment, “women’s sports have been a special

case,” and in this “limited area, our nationwide consensus

has been that equal opportunity for women requires

providing separate facilities and programs for them.” Id.

Representative Ehardt, as well as many other female

legislators, have voiced their personal stories of how

women’s sports opened doors and built lifelong leadership skills. Id. at 9-11.

This approach draws support from this Court’s own

precedent, which notes that “[p]hysical differences between men and women . . . are enduring.” United States

v. Virginia, 518 U.S. 515, 533 (1996). Eligibility for participating in women’s and girls’ sports has thus widely

been understood to reflect the biological and physical

characteristics that make a person female. The Fairness

in Women’s Sports Act tracks that commonsense understanding. Nonetheless, the rise of gender identity as a

concept separate from biological sex has prompted some

to argue that athletic participation should be based not

on biology but on, as the Ninth Circuit put it “a person’s

sense of being . . . female.” Little Pet. App. 13a. But if

5

biological criteria are abandoned, women face disadvantages because in almost every sport “boys and men

tend to be significantly stronger and faster, physically,

than girls and women.” Ehardt Br. at 14.

The Fairness in Women’s Sports Act thus mandates

that student sports be designated “based on biological

sex” and further directs that sports “designated for females, women, or girls shall not be open to students of

the male sex.” Idaho Code § 33-6203(1)-(2). This approach ensures that women and girls are not forced to

compete against men and boys who, on average, benefit

athletically from “enduring” physical differences. Virginia, 518 U.S. at 533. These differences were carefully

catalogued by the Idaho Legislature in detailed legislative findings supporting the Act. Among those findings

were that physiological distinctions between males and

females affect athletic performance, differences in testosterone levels, and even distinctions in muscle fibers.

Idaho Code § 33-6202(1)-(10). The legislative findings

were further backed by this Court’s precedent and by an

academic study of sex differences in sport and athletics.

E.g., id. § 33-6202(6), (10) (citing Virginia, 518 U.S. at

533; Doriane Coleman, Martina Navratilova, et al., Pass

the Equality Act, But Don’t Abandon Title IX, WASHINGTON POST (Apr. 29, 2019)).

The Act was thus designed to safeguard women’s opportunities by codifying long-recognized biological criteria in sport. In the years since the Idaho’s Fairness in

Women’s Sports Act became the first law of its kind,

more than half the States have “enacted statutes affirming that participation in women’s sports depends on biology.” Ehardt Br. at 5. Against this backdrop, it is misguided to suggest that the Act or similar protections

were somehow contrived for no other purpose than “to

6

exclude transgender and intersex people.” Little Pet.

App. 29a. And it was equally wrong to suggest that the

sole reason to define a person’s sex “only by their reproductive biology and genetics at birth” is “to exclude

transgender girls from the definition of ‘female’ and thus

to exclude them from participation on girls sports

teams.” B.P.J. Pet. App. 24a. The Court should reject

both suggestions.

In fact, this Court has often stressed the role of deference in other constitutional contexts. In Christian Legal Society v. Martinez, 561 U.S. 661 (2010), this Court

emphasized that “judges lack the on-the-ground expertise and experience of school administrators” and so “we

have cautioned courts in various contexts to resist substituting their own notions” of good policy when it comes

to students. Id. at 686. Universities, for instance, “enjoy

a significant measure of authority” and the Court gives

“due decent respect” when considering constitutional objections. Id. at 687. Respecting the views of state policymakers warrants no lesser caution given that the complexities of such decisions are equally ill-suited for federal courts. See, e.g., Bd. of Ed. of Hendrick Hudson

Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S.

176, 206 (1982) (cautioning courts to resist “substitut[ing] their own notions of sound educational policy for

those of the school authorities which they review”).

The Court should thus also reject any notion that the

Act is constitutionally infirm. The Act comports with

equal protection because it “realistically reflects the fact

that the sexes are not similarly situated in certain circumstances.” Michael M. v. Superior Court, 450 U.S.

464, 469 (1981). Defining eligibility for women’s and girls’

sports by biological sex is also essential to properly recognize women’s athleticism and athletic achievements,

7

which would be lost without opportunities “designated

specifically for women” based on biological criteria. Little Pet. Br. 6. Separating sports teams based on sex furthers the State’s compelling 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). And the Act is supported

by detailed findings explaining why “[t]he benefits that

natural testosterone provides to male athletes” cannot

be “diminished through the use of puberty blockers and

cross-sex hormones.” Id. § 33-6202(11).

In other words, the Act reflects understandable

“trade-offs between equality and practicality.” Clark,

695 F.2d at 1132. Idaho, like the other States enacting

similar protections, need not “maximize equality” in its

line-drawing. Id. at 1131. That is especially true here

where, as described above, advances in opportunities for

women and girls could be threatened or erased by mistaken attempts to remove biology from the playing field.

The Court should ensure that the constitutional standard

preserves lawmakers’ ability to make “predictive judgment[s]” necessary to protect the advances made for

women and girls in sports. Brown v. Ent. Merchs. Ass’n,

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

II. Preserving Laws Like Those in Idaho and West

Virginia Serves the Aims of Federalism.

Federalism protects the Nation by diffusing power

between the States and the federal government, and also

among all fifty States. Reversal of the decisions below

will help ensure the proper spheres of state influence

8

over complex policy choices that federalism was meant

to protect.

A. The Framers feared the accumulation of power in

any single person or body, rejecting the “accumulation of

all powers, legislative, executive, and judiciary, in the

same hands.” THE FEDERALIST NO. 47, at 301 (James

Madison) (Clinton Rossiter, ed. 1961). To foreclose that

result, the Framers created the “compound republic of

America,” in which “the power surrendered by the people is first divided between two distinct governments,

and then the portion allotted to each subdivided among

distinct and separate departments.” THE FEDERALIST

No. 51, at 323 (James Madison) (Clinton Rossiter, ed.

1961). Such federalism principles track the separation of

powers. See New York, 505 U.S. at 181; see also Printz v.

United States, 521 U.S. 898, 918-22 (1997). Together, federalism and separation of powers form the “double security” protecting “the rights of the people.” THE FEDERALIST NO. 51, at 320.

But an equally important separation of power was the

division among the fifty States themselves. For the

Framers, this additional separation was necessary so

that state and federal governments would “control each

other, at the same time that each will be controlled by

itself.” Id. at 323. That “structure allows local policies

‘more sensitive to the diverse needs of a heterogeneous

society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”

Bond v. United States, 564 U.S. 211, 221 (2011) (quoting

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)). Federalism thus “allows States to respond . . . to the initiative of

those who seek a voice in shaping the destiny of their own

9

times without having to rely solely upon the political processes that control a remote central power.” Id.

The Framers believed that the States would compete

with one another for influence, guarding against abuse

“from either front.” Gregory, 501 U.S. at 458-59 (citing

THE FEDERALIST NO. 28, at 180-81 (Alexander Hamilton) (Clinton Rossiter, ed. 1961)). Maintaining proper

separation among the components of our federal system

was crucial to guard against “danger from interested

combinations of the majority.” THE FEDERALIST NO. 51,

at 324. Of course, “each State’s equal dignity and sovereignty under the Constitution implies certain constitutional limitations on the sovereignty of all of its sister

States.” Franchise Tax Bd. v. Hyatt, 587 U.S. 230, 245

(2019) (cleaned up). But the Framers did not give the

States “an untouchable domain of judicially protected jurisdiction” to protect their interests. Larry D. Kramer,

Putting the Politics Back into the Political Safeguards

of Federalism, 100 COLUM. L. REV. 215, 286 (2000). The

Framers instead relied on the States’ “ability to influence national politics” and “capacity to compete effectively for political authority.” Id.

States must “recognize, and sometimes defer to, the

laws, judgments, or interests of another.” Gil Seinfeld,

Reflections on Comity in the Law of American Federalism, 90 NOTRE DAME L. REV. 1309, 1309 (2015). “[W]hile

an individual state may make policy choices for its own

state,” the Constitution does not permit a State to directly “impose those policy choices on the other states.”

Margaret Meriwether Cordray, The Limits of State Sovereignty and the Issue of Multiple Punitive Damages

Awards, 78 ORE. L. REV. 275, 292 (1999) (citing BMW of

N. Am., Inc. v. Gore, 517 U.S. 559, 568-73 (1996)). This

Court’s precedents balance the tension between

10

restrictions on state legislation that discriminates

against other States versus “the autonomy of the individual States within their respective spheres.” Healy v.

Beer Inst., 491 U.S. 324, 336 (1989).

In practice, this balance means that policy judgments

in one State must often be respected even if those in

other States might disagree. To maintain equilibrium,

federalism relies on the citizen’s ability to seek political

accountability from those responsible for State policymaking. Indeed, an inability to hold “the government answerable to the citizens” may be “more dangerous than

devolving too much authority to the remote central

power.” United States v. Lopez, 514 U.S. 549, 577 (1995)

(Kennedy, J., concurring). The Court must thus maintain

“the autonomy of the individual States” versus one another and in relation to federal power. Healy, 491 U.S. at

336.

But the Framers also understood the States’ tendency “to aggrandize themselves at the expense of their

neighbors.” THE FEDERALIST NO. 6, at 60 (Alexander

Hamilton) (Clinton Rossiter, ed. 1961). The goal of the

federal system is thus “to assign political responsibility,

not to obscure it.” F.T.C. v. Ticor Title Ins. Co., 504 U.S.

621, 636 (1992). Otherwise, “[u]nrepresented interests

will often bear the brunt of regulations imposed by one

State having a significant effect on persons or operations

in other States.” S.-Cent. Timber Dev., Inc. v. Wunnicke,

467 U.S. 82, 92 (1984). When the “burden [of regulation]

falls principally upon those without the state, legislative

action is not likely to be subjected to those political restraints which are normally exerted on legislation where

it affects adversely some interests within the state.” Id.

(cleaned up). So, when disagreement arises, federal

courts respond by ensuring that political accountability

11

is assigned correctly. See, e.g., Ticor Title, 504 U.S. at

636.

State policymakers must thus remain free to tailor

their legislation to local needs, since “smaller units of

government have an incentive . . . to adopt popular policies.” Michael W. McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. CHI. L. REV. 1484, 1498

(1987). Federalism thus “provides an additional level of

freedom to individuals, beyond that provided by specific

guarantees of individual rights, by conferring the freedom to choose from among various diverse regulatory regimes the one that best suits the individual’s preferences.” Lynn A. Baker & Ernest A. Young, Federalism

and the Double Standard, 51 Duke L.J. 75, 138-39 (2001).

The “point of federalism” is “to allow normative disagreement amongst the subordinate units so that different units can subscribe to different value systems.” Edward L. Rubin & Malcolm Feeley, Federalism: Some

Notes on a National Neurosis, 41 UCLA L. REV. 903,

912 (1994).

B. By effectively federalizing the issue of women’s

and girls’ sports and imposing a contrary view on States,

the decisions below embody the sort of threat to liberty

that federalism was designed to prevent. For instance,

the Ninth Circuit denied State sovereign interests in

protecting spaces reserved exclusively for “tens of millions of female athletes.” Little Pet. 3-4. The Ninth Circuit wrongly interfered with citizens’ “elected representatives in half the states from relying on sex-based distinctions to save women’s sports.” Id. at 9. Removing

these complex policy choices from the fifty state legislatures “runs the risk of making them harder to solve.” Id.

at 27 (citation omitted). Line-drawing about athletics and

sex categories belongs to state legislatures, not to those

12

who wish to impose contrary viewpoints on all the States

by resorting to federal court.

The proper, “gradualist approach” also serves the interests of federalism because it “lowers the political temperature.” Richard A. Epstein, The Constitutionality of

Proposition 8, 34 HARV. J.L. & PUB. POL’Y 879, 881

(2011). It prevents the States who disagree from imposing their policy preference on the States that protect

women’s and girls’ sports. See Baker & Young, supra, at

110. Only when competition for the “benefits of government” exists can we perceive which legal rules actually

“make things better for most people.” McConnell, supra,

at 1494, 1499. Reversal limits States’ ability to expand

their reach at the expense of other States and preserves

each State’s influence in that competition.

That balance is especially important for amici given

their authority as legislators to protect the State’s

youngest citizens. For instance, the Idaho Constitution

provides that “[t]he stability of a republican form of government depend[s] mainly upon the intelligence of the

people,” and “it shall be the duty of the legislature of

Idaho[] to establish and maintain a general, uniform and

thorough system of public, free common schools.” IDAHO

CONST. art. IX, sec. 1. Idaho must defend itself from lawsuits attacking policy choices it makes in that context.

E.g., Zeyen v. Boise Sch. Dist. No. 1, 522 F. Supp. 3d 788,

802 (D. Idaho 2021) (involving challenge based on Idaho’s

policy choice not to require a school district to offer kindergarten). It would be unfair to require Idaho lawmakers to remain accountable for addressing complex policy

problems in schools while tying their hands in other respects, such as with respect to student safety.

Unless the Court intervenes, federal courts will continue to prove attractive venues for displacing state

13

legislative authority. Separating the political and judicial

branches of government respects the “integrity, dignity,

and residual sovereignty of the States.” Bond, 564 U.S.

at 221. And doing so helps to “ensure that States function

as political entities in their own right.” Id.; see also Nat’l

Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519,

707 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (listing “federalism and separation of powers”

among the “most important” “structural protections” in

our Constitution). But an unelected judiciary is not

among the politically accountable branches that can be

safely “relied upon to respect th[ose] States.” Calvin R.

Massey, The Tao of Federalism, 20 HARV. J.L. & PUB.

POL’Y 887, 891 (1997). Unlike federal courts, political

branches of government like those served by amici face

“localized accountability.” MARTIN H. REDISH, THE

CONSTITUTION AS POLITICAL STRUCTURE 138 (1995).

Rather than judicial superintending, federalism relies heavily on political efforts like State-focused lobbying efforts and state political-party pressure. D. Bruce

La Pierre, Political Accountability in the National Political Process—the Alternative to Judicial Review of

Federalism Issues, 80 NW. U. L. REV. 577, 633-39

(1985). The “success of American federalism” would be

undermined “[i]f the federal government were free to

evade federal lawmaking procedures by shifting substantial lawmaking authority to unelected officials (such

as independent agencies or federal courts).” Bradford R.

Clark, Putting the Safeguards Back into the Political

Safeguards of Federalism, 80 TEX. L. REV. 327, 337

(2001). Of course, “[p]ermitting the federal government

to avoid these constraints” would also “allow it to exercise more power than the Constitution contemplates”

and to do so “at the expense of state authority.” Clark,

14

supra, at 1324. Unlike bodies that are effectively insulated from political forces, the legislative process provides far “more opportunities and more access points to

provide input.” Michele E. Gilman, Presidents, Preemption, and the States, 26 CONST. COMMENT. 339, 365

(2010). Reversing here helps ensure that “a State’s government will represent and remain accountable to its

own citizens.” Printz, 521 U.S. at 920.

Especially in divisive controversies like the debate

over women’s and girls’ sports, federalism lets each

State decide how best to proceed without undue federal

pressure. If “sex” must yield to “gender identity” here,

there is little reason why the reasoning below would not

also jeopardize countless other laws, such as “sex-based

medical laws or regulations, even where such rules would

be best medical practice.” United States v. Skrmetti, 145

S. Ct. 1816, 1839 (2025) (Thomas, J., concurring). Depriving citizens of a choice in state policies like these frustrates a crucial vehicle for expressing political preferences apart from the ballot box. See Ilya Somin, Foot

Voting, Federalism, and Political Freedom, 55 NOMOS

83, 85 (2014) (explaining how “foot voting” supplements

the ballot box to ensure that “people themselves are able

to select the policies they prefer”). And it undercuts the

aim of making government “more responsive by putting

the States in competition” for those mobile citizens.

Gregory, 501 U.S. at 458.

As long States can present citizens an option among

localized policy choices “in a meaningful way, localism

promotes diversity as an important barrier” against the

sort of national overreach the Framers feared. Anne C.

Dailey, Federalism and Families, 143 U. PA. L. REV.

1787, 1872 (1995). Idaho’s Act and other States’ analogous protections follow from that spirit of localism

15

essential to American federalism. The Court should reverse to uphold those ideals.

III. The Court Should Carefully Police Restraints on

Federal Spending Power in the Student-Athlete

Context.

By finding an Equal Protection violation in the Fairness in Women’s Sports Act, the Ninth Circuit undermined the freedom and flexibility needed to address this

complex issue. That result is especially troubling in view

of the Fourth Circuit’s decision, which functionally extended federal authority by virtue of Title IX even where

Congress could not act on the States directly. The Court

should uphold the Constitution’s careful guardrails

against the expansion of federal power, preserving the

scope of authority reserved to Idaho, West Virginia, and

the other States.

A. Congress “can exercise only the powers granted to

it.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405

(1819); see also THE FEDERALIST No. 45, at 292-93

(James Madison) (Clinton Rossiter ed., 1961) (“The powers delegated by the proposed Constitution to the federal

government are few and defined . . . . The powers reserved to the several States will extend to all the objects

which, in the ordinary course of affairs, concern the lives,

liberties, and properties of the people . . . .”). Congress

does not exercise plenary lawmaking power over student

athletes and has not yet purported to do so on the subject

of women’s and girls’ sports in public schools. Rather,

States derive the power to enact provisions like Idaho’s

Fairness in Women’s Sports Act or West Virginia’s sister

legislation from state police powers, which Congress

lacks. Legislative authority for health, safety, and

16

athletics in public schools or institutes of higher education are core traditional state powers. B.P.J. Pet. Br. 3233.

Congress does not enjoy that latitude because the

Constitution left those powers to the States. U.S. CONST.

Amend. X. The ability to dictate terms of participation

for student-athlete opportunities is notably absent from

Congress’s enumerated powers and from its historic

practice. U.S. CONST. art. I, § 8; see also NFIB, 567 U.S.

at 549 (“Sometimes the most telling indication of a severe

constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” (cleaned up)). States retain

their sovereign authority and may only give it up knowingly and voluntarily. “Respecting this limitation is critical to ensuring that Spending Clause legislation does not

undermine the status of the States as independent sovereigns in our federal system.” NFIB, 567 U.S. at 577.

B. Congress may, within the scope of a contract

formed under the Spending Clause, require that the

States surrender specific authority to be a party to the

contract. But that background rule provides no support

for the challengers here.

If States are to cede some power to the federal government by entering into a contract, they must do so

knowingly. This well-established understanding rightly

respects both governments as the co-equal powers they

are, upholding core federalism principles. See Murphy v.

Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 470-71

(2018) (noting the Framer’s rejection of a Constitution

that would allow Congress to “control state legislatures”). Notably, “[t]he Constitution limited but did not

abolish the sovereign powers of the States, which retained ‘a residuary and inviolable sovereignty.’” Id. at

470 (quoting THE FEDERALIST No. 39, at 245 (James

17

Madison) (Clinton Rossiter, ed. 1961)); see also U.S.

CONST. Amend. X.

This Court has thus steadfastly maintained the primacy of the contractual relationship inherent in Spending Clause legislation, emphasizing that the federal government must provide a clear understanding of obligations to the States, or the States cannot be held to those

obligations. NFIB, 567 U.S. at 577. Congress may attach

conditions to federal funds, but only clearly and unambiguously with notice of the conditions. See Pennhurst

State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981);

accord South Dakota v. Dole, 483 U.S. 203, 207 (1987).

When States agree to surrender any of their authority,

such surrender is “strictly construed . . . in favor of the

sovereign.” See, e.g., Sossamon v. Texas, 563 U.S. 277,

285 (2011) (cleaned up); accord Moyle, 603 U.S. at 347

(Alito, J., dissenting). In other words, if Congress expects States to agree to certain terms before accepting

funds, it would be required to make this explicitly clear.

Here, Congress has chosen not to force States to let

men and boys to participate in women’s and girl’s athletic

opportunities. “If Congress intends to alter the usual

constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)

(cleaned up) (describing this principle as an “ordinary

rule of statutory construction”). The necessary clear

statement is entirely absent from Title IX. See, e.g.,

B.P.J. Pet Br. 32. Because an explicit grant of power has

not been made, States retain their authority to protect

women’s and girls’ sports here.

States may come within the scope of some federal

power by accepting federal funding for schools.

18

However, the Court should reject any notion that States

wholly surrender their police power by doing so. No relevant federal-spending program clearly states a condition that males be allowed to participate in female publicschool athletic activities, see Arlington Cent. Sch. Dist.

Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (conditions must be stated “unambiguously”); accord Moyle,

603 U.S. at 347 (Alito, J., dissenting). “[T]hough Congress’ power to legislate under the spending power is

broad, it does not include surprising participating States

with post-acceptance or ‘retroactive’ conditions.” NFIB,

567 U.S. at 584. And a condition sweeping as potentially

broadly as some suggest Title IX be read here, implicating vast amounts of federal funding, would almost surely

raise serious doubts in view of this Court’s restrictions

on coercive funding conditions. See id. at 580-81.

Without reversal, amici agree that the problem is

sure to worsen. See B.P.J. Pet. Br. 32-33. Emboldened

by the legal challenges like those brought here, plaintiffs

will bring more challenges to States’ management of

public schools and institutes of higher education. In

other States that wish to adopt competing understandings of female athletic participation, however, there will

be no comparable opportunity for individuals to bring

challenges to those programs once a blanket rule has

been imposed via Title IX as a matter of federal law. Because the federal government could not accomplish this

directly through spending requirements, the Court

should not countenance that result indirectly either.

This issue requires the Court’s correction and, particularly, close adherence to the limits of federal power.

Affirming the decision below will ensure that the States’

ability to protect their youngest citizens will continue to

erode. A reversal stops that course.

19

C O NCL USI O N

The Court should reverse the judgments below.

Respectfully submitted.

SEPTEMBER 2025

JUDD E. STONE II

Counsel of Record

CHRISTOPHER D. HILTON

ARI CUENIN

CODY C. COLL

STONE HILTON PLLC

600 Congress Ave.,

Ste. 2350

Austin, Texas 78701

judd@stonehilton.com

(737) 465-3897