In the lawsuit, Nye was joined by an anonymous biological female student, Jane Doe, who objected to the sex dispute verification process.
Judge Nye denied the motion to dismiss as too late, ruling that “[Idaho] has a fair right to have its arguments heard and adjudicated once and for all.” He added that “the Court feels [Hecox’s] mootness argument is, as above, somewhat manipulative to avoid Supreme Court review and should not be endorsed.”
After a district court ruled for Hecox, the Ninth Circuit upheld the injunction blocking the state law in 2023. Counsel for Hecox argued that the athlete “has … decided to permanently withdraw and refrain from playing any women’s sports at BSU or in Idaho.”
Idaho Attorney General Raul Labrador and Alliance Defending Freedom (ADF) attorney Kristen Waggoner argued against the effort to drop the litigation before the Supreme Court could rule.
This is one of two cases focused on the issue of trans athletes in women’s sports to be heard by the Supreme Court this term. The prospects, in my view, favor the challengers on appeal and a ruling in favor of such state laws.
West Virginia is also appealing to restore the “Save Women’s Sports Act” in 2021, after a lower court allowed transgender athlete Becky Pepper-Jackson to compete on the school’s cross-country and track teams. The 4th U.S. Circuit Court of Appeals ruled in favor of Pepper-Jackson.
One case that will not be before the Court is Lee v. Poudre School District R-1, involving parental rights. The Colorado case concerned two Colorado families whose sixth-grade daughters were encouraged to attend a school-sponsored Genders and Sexualities Alliance meeting. At the meeting, a teacher distributed transgender flags and allegedly encouraged students to “come out.” Students were told not to tell their parents.
In a statement accompanying the denial, Justice Samuel Alito noted that public school policies such as the one in this case are “troubling” and “tragic.”
Back to Little v. Hecox, we have previously seen the Court struggle with litigants gaming the system to pull out of an appeal just before the Court could rule. That was the case with New York when it moved to avoid a ruling on gun control laws and ultimately succeeded in getting a dismissal over the objections of some justices.
The ruling this week will now likely be appealed, setting up another “bait-and-switch” controversy before the Court.
Here is the Ninth Circuit opinion: Little v. Hecox