Three judges in the U.S. Ninth Circuit Court of Appeals heard arguments Tuesday in a case that will determine whether an injunction blocking Idaho’s transgender youth sports law can remain in place.

The Idaho Attorney General’s office and attorneys from the Alliance Defending Freedom filed the appeal in September after U.S. District Court Chief Judge David C. Nye ruled the injunction was still valid.

Lindsay Hecox, a transgender student at Boise State University, filed the lawsuit in April 2020 following the Idaho Legislature’s passage of House Bill 500, which barred transgender girls and women from participating in female sports. Idaho was the first state to pass the bill, and similar laws were subsequently introduced in 30 other states.

The lawsuit named Gov. Brad Little, Superintendent of Public Instruction Sherri Ybarra, the Idaho State Board of Education, Boise State President Marlene Tromp and others for discrimination because she wanted to join the women’s cross-country and track teams.

The American Civil Liberties Union of Idaho and Legal Voice have represented Hecox in the lawsuit, along with Cooley LLP, a law firm in Colorado.

Nye granted an injunction in the case in August 2020, blocking the law until it is resolved in district court. Hecox tried out for the team and didn’t make it.

Hecox withdrew from Boise State University in October 2020, prompting the state attorneys to file a motion stating the injunction should make the entire claim moot, meaning it would be dismissed. Hecox has said in court filings that she took the leave of absence to work full time, establish Idaho residency and save money.

Nye ruled in July 2022 that the change in enrollment status did not render the case moot. Nye determined that Hecox had followed through on her plans to obtain in-state residency and re-enroll, after which she planned to try out for the teams again.

“Although there are some questions about Hecox’s NCAA eligibility, she cannot continue to play soccer, or compete for a spot on the women’s track or cross-country teams, absent an injunction,” Nye wrote in the decision. “Thus, Hecox’s claim is not moot.”

Attorney argues eligibility requirements don’t matter if student can’t even try out

As of April, Hecox had enrolled in nine credits for the spring semester and was playing on the women’s club soccer team with the intention of trying out for the women’s track and cross-country teams again in the fall semester.

Judges Kim McLane Wardlaw, Andrew J. Kleinfeld and Ronald M. Gould considered arguments over whether Hecox would qualify for the track and cross-country teams based on NCAA’s eligibility requirements around a student’s course load at school. If Hecox wasn’t eligible for the team anyway, the state argued, the case would be moot.

Andrew Barr, an attorney with Cooley LLP, said the NCAA requirements only affected eligibility after a player is admitted to the team as long as the student is enrolled at the school. Idaho’s transgender sports law would restrict Hecox from even trying out for the team if it was in effect, Barr argued.

“It’s the imposition of a barrier that creates the equal protection problem,” Barr said during the oral arguments.

Deputy Attorney General Scott Zanzig argued the court should dismiss the case and require Hecox to refile under the new circumstances, and Alliance Defending Freedom attorney Cody Barnett agreed, calling it an “11th hour attempt” to shoehorn an argument around playing soccer into one that was originally about running track.

The judges did not provide any closing comments to the arguments, and are expected to rule in the next few months, according to a press release from the ACLU.

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