January 20, 2021
How eight women’s basketball players are fighting for the legal rights of transgender athletes
The players are opposing an Idaho law that bars transgender women from women’s sports
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On December 21, eight women’s basketball players joined 168 other athletes in signing a letter to the U.S. Court of Appeals for the Ninth Circuit supporting the rights of transgender girls and women in sports. Lambda Legal filed the letter, known as an amicus brief, in support of Lindsay Hecox, a transgender woman who wants to run on the women’s cross-country team at Boise State University and is challenging Idaho’s Fairness in Women’s Sports Act.
The Act, also known as HB 500, was passed in March 2020 and bans transgender girls and women and some intersex people from competing against cisgender women. (In August, a U.S. District Court paused implementation of the law while Hecox’s lawsuit is pending.) As Sports Illustrated reported last month, “Girls and women who compete in youth, high school and college sports, whether they’re transgender or cisgender, will be subject to being challenged by competitors on their biological sex—in essence, forced to prove their womanhood.”
The law specifies that such proof must come via a signed statement from a doctor “based solely on” the person’s internal and external reproductive anatomy, testosterone levels, and genetics, all of which require some level of invasive testing. Anne Lieberman, the director of policy and programs for Athlete Ally, which recruited the athlete signatories for the brief, recently told The IX that the legislation reminds her of the sex verification testing for Olympic athletes that began in the late 1930s. “It’s … about policing anybody who doesn’t conform to very specific types of femininity,” she said.
Lambda Legal’s brief is one of several filed on both sides in the Hecox v. Little case, but it is unique in that it includes the voices of nearly 200 athletes. In women’s basketball alone, WNBA players Candace Parker and Layshia Clarendon and overseas professional player Toccara Ross signed the brief along with five former or current players at the high school and college levels.
The brief argues that there are important benefits of participating in sports at any level and that all women have the right to reap these benefits. While HB 500 argues that banning transgender and some intersex participants protects the integrity of women’s sports, the brief counters that the law “flies in the face of bedrock principles of equality and diversity in sports” and that “equal opportunity benefits the entire sports community.”
Lambda Legal staff attorney Carl Charles told The Next that amicus briefs have been particularly impactful in cases about LBGTQ+ rights, including the landmark Obergefell v. Hodges case that legalized same-sex marriage. Amicus briefs provide the courts with additional perspectives from people who are not otherwise part of the lawsuit, such as the 176 athletes who signed the Lambda Legal brief.
“Amicus briefs are very important in determining the outcome of a case,” Charles said. “I don’t want to say they’re more important, of course, than the party briefs [filed by the defendant and plaintiff], but they just give the context and color to an issue that the court wouldn’t otherwise have.”
In the Hecox case, the Lambda Legal brief does that by explaining how sports can benefit women at all levels of competition, including by promoting academic achievement, building teamwork and leadership skills, and improving physical and mental health. Kelsey Trainor, an entertainment attorney and sportswriter who is not part of the case, told The Next that the brief “give[s] the judges … the practical realities of what their rulings would look like in society in practice. That to me is the most significant part.”
Lieberman pointed out that the brief also busts at least one myth about women’s sports. “There is this belief or emphasis that female athletes don’t want trans women to participate in women’s sports,” she told The IX. “And we wanted to show that there is an incredible bench of athletes who want trans women and girls to be included in women’s sports.”
Athlete Ally recruited many of the brief’s signatories through its Ambassador program, which aims to make public policy, communities, and teams more inclusive. Ross, former Stanford basketball and softball player Amanda Renteria, and current Washington University in St. Louis basketball player Karisa Grandison all said that signing the brief was an easy decision.
“As someone who is an advocate in the LGBTQ+ community … it was a no-brainer,” Ross said. “… [And] I know personally what the sport has done for me as a young Black and Brown girl, as a queer person. So … it’s a no-brainer to want to make sure that every child is included in the sport, regardless of gender and the binary. It’s just like, let’s play.”
“it’s just incredibly unfair that someone could be excluded from enjoying all the benefits that sports brings just because they don’t identify as cisgendered. And that just didn’t sit right with me,” Grandison added.
The brief’s headliners are a veritable who’s who in sports, including tennis legend Billie Jean King, U.S. Soccer stars Megan Rapinoe and Becky Sauerbrunn, three-time Olympic ice hockey medalist Meghan Duggan, and NFL assistant coach Katie Sowers in addition to Parker and Clarendon. But the brief is also striking in its diversity. As Renteria put it, for some signatories, sports are “central to their craft and their career,” while for others, sports are “a piece of their life at a particular time.”
The latter group is critical to the brief’s chances of success, even as it generates less attention publicly. “This [brief] is about the value of participating in sports, of the lifelong benefits it yields,” Charles said. “And those really, I think, are borne out by some of our athletes who don’t go on to build illustrious professional careers.”
One of those players is Renteria, a former walk-on who has carved out a high-profile political career since graduating from Stanford in the mid-1990s. She served as the first Latina chief of staff in U.S. Senate history, managed the political strategy for Hillary Clinton’s 2016 presidential campaign, and ran for governor of California and for Congress. First in her playing days and then throughout her political career, she has seen more women and people of color get seats at the table and much of America become more open and inclusive.
Renteria doesn’t remember ever discussing the issues raised in the Hecox case during her playing career, in part because more basic questions about the viability of women’s sports were still being decided. “Growing up, it was more about, how do we create more opportunities for women to compete?” she said. “… Social activism wasn’t something on the list. We were just busy fighting for having fair and equal resources.”
Renteria is now the CEO of Code for America, a nonprofit that builds technology to help governments better serve the people. “In some ways, it’s been … the same battles that we were fighting for women’s sports,” she says of her professional career. “Like, it needs to be fair and equal. What’s great about it now is … we are now getting to the point where we have fair and equal resources. And now we’re defining who we are and having a voice in how women’s sports get shaped, not just whether or not we have the resources, but what kind of culture we want to be as a collective body. And I think that will happen more and more as more women enter places of power.”
Renteria also sees another sign of progress: her two children are learning in school about the gender binary and other inclusive concepts that she didn’t discuss until well into adulthood. “Their generation views the world quite differently than we do on race, on gender,” she said.
Grandison, who is about ten years older than Renteria’s children, embodies that evolution. Referring to HB 500 and similar legislation, Grandison said, “It’s kind of shocking that this is still an issue today. And so I definitely want to be part of moving in the right direction.”
Ross brings a unique perspective to the brief because, since graduating from Iowa State in 2009, she has played 12 professional seasons on five different continents. Speaking specifically about her experiences in Europe, she said, “[European athletes] don’t have the luxury, oftentimes, to be as free as we do when it comes to how we show up in the world. In the sports community over there, within our own American little subcultures … we can talk about [inclusion and social justice] and we can share those different experiences, but, after talking to my teammates over the years, they don’t have that freedom and that liberty all the time.” Ross added that HB 500 and similar laws contradict those ideals and restrict the ability of some Americans, too, to participate in society fully and openly.
Ross, Grandison, and Renteria all consider the brief to be an extension of WNBA players and other athletes’ activism this summer in response to another kind of social injustice: police brutality against George Floyd, Jacob Blake, and other people of color. “Women have always been responsible for our own push in this world, in our society, and we don’t often get heard,” Ross said. “And the activism that was shown this summer … they took the challenge on their back and were like, ‘We’re here, we’re going to talk about it, and we’re not going to be quiet about it.’ And this brief has really just latched on to that momentum.”
Beyond the immediate goal of convincing the Ninth Circuit to rule against HB 500, the three players hope that the amicus brief fosters further conversation and awareness about inclusion in sports and society. Although they had had varying levels of involvement with Athlete Ally before signing the brief, they all expressed a desire to continue to advocate for the rights of all women in sports. “The work will never be done,” Ross said.
The players’ interest could not be more urgent, as Idaho is hardly the only state to restrict trans girls and women’s participation in sports. In the first three months of 2020 alone, before the COVID-19 pandemic paused many state legislative sessions, 18 states were considering legislation to exclude transgender youth from sports. Similar legislation was introduced in Kentucky, Montana, New Hampshire, North Dakota, Oklahoma, and Tennessee within the first 17 days of 2021.
Trainor believes that the U.S. Supreme Court will eventually hear a case on transgender rights, whether in the realm of sports or in other areas such as healthcare. A federal ruling would establish a new minimum standard for the protections and rights that states provide to transgender people—though states could still provide more than federal law requires—and could have implications for sports even if the case is not about athletics.
Until then, activist groups—and athletes—will continue to contest legislation like HB 500 case by case, in state and appellate courts around the nation.
“These are the fights that lead to a more inclusive country,” Renteria said. “…One of the things I’ve seen over the course of my career is that if you don’t address it early, and all of a sudden, laws like this have popped up in half our states … it’s really hard to unwind a decentralized system like we have. And so it is important that we are trying to combat it at the state level…
“What I hope is that we create an environment where it’s much easier to unravel some of these laws that keep people out, and so when we [become more inclusive] as a country, when we get to the views of our children, that they’re able to actually live the kind of life that they hope to live in their vision. And it starts with court cases like this.”
Written by Jenn Hatfield
Jenn Hatfield has been a contributor to The Next since December 2018 and is currently the site's managing editor, Washington Mystics beat reporter and Ivy League beat reporter. (She also writes the "Family Rivalries" series for The Next.) Her work has also appeared at FiveThirtyEight, Her Hoop Stats and FanSided.