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Hecox v. Little

Description:  The American Civil Liberties Union is challenging Idaho’s Fairness in Women's Sports Act to force female athletes to compete against biological males who identify as female.

Thursday, Jul 11, 2024

WASHINGTON – The states of West Virginia and Idaho, together with attorneys from Alliance Defending Freedom, asked the U.S. Supreme Court to hear the cases of female athletes who are seeking to protect women’s sports. In B.P.J. v West Virginia State Board of Education, West Virginia Attorney General Patrick Morrisey and ADF are asking the Supreme Court to hear their case after the U.S. Court of Appeals for the 4th Circuit ruled to undermine West Virginia’s ability to protect fairness in women’s sports. The petition seeks review on behalf of West Virginia officials and athlete Lainey Armistead.

In Hecox v. Little, Idaho Attorney General Raúl Labrador and ADF are asking the high court to uphold their state’s Fairness in Women’s Sports Act after the U.S. Court of Appeals for the 9th Circuit upheld an injunction against enforcement of the law. The petition seeks review on behalf of Idaho officials and athletes Madison Kenyon and Mary Kate Marshall.

“Back in April, the 4th Circuit handed down a 2-1 ruling that reversed an earlier decision upholding the West Virginia’s Save Women’s Sports Act. I promised back then that I would keep fighting for the safety, wellbeing, and fairness in women’s sports, and now I’m keeping that promise. We are confident in the merits of our defense of this obviously constitutionally permissible law, which through and through complies with Title IX and the Constitution—that’s why we are taking this to the Supreme Court. West Virginia’s law protects fairness and safety for girls and women in sports. It’s really that simple,” Morrisey said.

“Idaho is committed to ensuring that our women and girls get a fair shot on and off the field. While we’ve been fighting for fair and equal athletic competition, activists have been pushing a radical agenda that will ultimately sideline women and girls. Many athletic associations around the world have seen the obvious truth that men are naturally stronger and would create a dangerous, unfair environment for women to showcase their incredible talent in sports. We are asking the U.S. Supreme Court to uphold our law and ensure that women and girls get the opportunities they deserve,” said Labrador.

“Women and girls deserve to compete on a level playing field, but activists are seeking to erase differences between men and women by forcing women’s sports leagues to allow men to compete,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch, who is representing both the states and the athletes. “This contradicts both biological reality and common sense. We should be seeking to protect women’s sports and women’s equal opportunities, and West Virginia’s and Idaho’s women’s sports laws accomplish just that. Lainey, Madison, Mary Kate, and a dozen others we represent across the country, deserve to compete on a level playing field with other women. This isn’t political or partisan—it’s basic fairness and common sense. We are urging the Supreme Court to hear the stories of these brave women fighting for the future of women’s sports and restore their ability to compete and win.”

The petition in B.P.J. explains, “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.’”

“Last term, two Justices said it would be appropriate for the Court to get involved at the emergency-relief stage. The case for the Court’s involvement now is even more compelling. The 4th Circuit has set out its fractured analysis. And so long as this decision stands, 25 state laws on these issues are in doubt. That doubt irreparably damages safe and fair athletic competition. As each sports season comes and goes, more girls will lose the benefits of safe and fair play. But those girls shouldn’t have to wait,” the petition in Hecox further notes.

In B.P.J., a middle-school male athlete competing on a West Virginia girls’ track team finished ahead of almost 300 girls in three years in cross-country and track-and-field events. Armistead intervened in the lawsuit to defend the state’s law, which was enacted to ensure equal athletic opportunities for women.

In Hecox, Kenyon and Marshall, who ran track and cross-country at Idaho State University, are defending Idaho’s women’s sports law alongside the state. The two women are long-time athletes who are well familiar with the differences in strength, speed, and stamina between comparably gifted and trained male and female athletes. They have both been forced to compete against a male athlete—and have been pushed down in the rankings as a result.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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ABOUT John Bursch

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.

ABOUT Christiana Kiefer

Christiana Kiefer serves as senior counsel for Alliance Defending Freedom, where she is a key member of the Center for Conscience Initiatives. Since joining ADF in 2012, Kiefer has worked to protect women's and girls' sports and has defended the bodily privacy rights of students. She has also worked to protect the constitutionally protected freedom of churches, Christian schools, and Christian ministries to exercise their faith without government interference. Kiefer earned her J.D. in 2010 from Oak Brook College of Law and Government Policy, where she graduated first in her class and served as a teaching assistant in criminal law. Also in 2010, Kiefer completed the ADF leadership development program to become a Blackstone Fellow. She is admitted to the state bar of California, the U.S. Supreme Court, and numerous federal district and appellate courts.