Lindsay Hecox v. Bradley Little ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDSAY HECOX; JANE DOE, with her No. 20-35813
next friends Jean Doe and John Doe,
D.C. No. 1:20-cv-00184-DCN
Plaintiffs-Appellees,
v. MEMORANDUM*
BRADLEY LITTLE, in his official capacity
as Governor of the State of Idaho; et al.,
Defendants-Appellants,
and
MADISON KENYON; MARY
MARSHALL,
Intervenors.
LINDSAY HECOX; JANE DOE, with her No. 20-35815
next friends Jean Doe and John Doe,
Plaintiffs-Appellees, D.C. No. 1:20-cv-00184-DCN
v.
BRADLEY LITTLE, in his official capacity
as Governor of the State of Idaho; et al.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants,
and
MADISON KENYON; MARY
MARSHALL,
Intervenors-Appellants.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Argued and Submitted November 22, 2022
San Francisco, California
Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.
Intervenors-Appellants (Intervenors) appeal from the district court’s order
determining that Lindsay Hecox’s (Hecox) constitutional challenge to Idaho’s
Fairness in Women’s Sports Act, Idaho Code §§ 33-6201⁠–06 (the “Act”), is not
moot. “A district court's mootness determination is reviewed de novo, while the
underlying factual determinations are reviewed for clear error.” Nat. Res. Def.
Council v. Cnty. of Los Angeles, 840 F.3d 1098, 1102 (9th Cir. 2016). We have
jurisdiction under 28 U.S.C. § 1292, and we affirm.
1. Hecox’s challenge to the constitutionality of the Act is not moot and
has not been mooted by events occurring during the course of this litigation. The
district court enjoined enforcement of the Act on August 17, 2020, holding that
Hecox was likely to succeed in her claim that the Act, which precludes transgender
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women from participating in any women’s sports sponsored by a public school,
violates the Equal Protection Clause of the U.S. Constitution. During the pendency
of this appeal, Hecox informed us that she had withdrawn from her sophomore
year classes at Boise State University (BSU) in late October 2020. Because the
parties’ arguments raised several unanswered factual questions regarding
mootness, we remanded to the district court for further factual development and
findings on the question of mootness on June 24, 2021.
“Consistent with the dictates of the Supreme Court, we approach mootness
cautiously and with care to ensure that the party claiming the benefit of mootness
. . . has carried its burden of establishing that the claim is moot.” United States v.
Larson, 302 F.3d 1016, 1020 (9th Cir. 2002). Because “[i]t is no small matter to
deprive a litigant of the rewards of its efforts,” dismissing a case for mootness is
“justified only if it [is] absolutely clear that the litigant no longer ha[s] any need of
the judicial protection” it seeks. Adarand Constructors, Inc. v. Slater, 528 U.S.
216, 224 (2000) (per curiam) (emphasis added). The Supreme Court and the Ninth
Circuit have held that an intent to resume a stated activity can be sufficient to
demonstrate a live controversy. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287
(2000); Clark v. City of Lakewood, 259 F.3d 996, 1006, 1011–12 (9th Cir. 2001),
as amended (Aug. 15, 2001); S. Oregon Barter Fair v. Jackson Cnty., 372 F.3d
1128, 1133–34 (9th Cir. 2004).
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Intervenors contend that the district court improperly relied on “subsequent
facts” that developed after October 2020 to determine that Hecox’s claims were
not moot. However, as the district court found, Hecox’s claim was not moot when
she withdrew from BSU in October 2020, because she expressed a concrete plan to
re-enroll after establishing Idaho state residency and try out for the track and cross-
country teams, and the withdrawal did not act as a barrier to reenrollment. Even
when Hecox withdrew, for example, she had a conversation with a BSU academic
advisor and left school before the October 30, 2020 deadline, in order to preserve
her ability to re-enroll in good standing. Moreover, evaluating mootness requires
that courts consider events subsequent to the filing of a complaint to determine
how “circumstances have changed.” Clark, 259 F.3d at 1011; see also S.F.
BayKeeper, Inc. v. Tosco, 309 F.3d 1153, 1160 (9th Cir. 2002). Not only did
Hecox demonstrate a concrete plan to re-enroll and try out for women’s sports, but
she followed through on those plans by establishing state residency, re-enrolling at
BSU with significant savings for tuition and other expenses, and training to
participate in women’s sports teams. Indeed, Hecox began playing on the BSU
women’s club soccer team in Fall 2022, from which the Act categorically bars her
absent the extant preliminary injunction. See Idaho Code § 33-6203(1).
Alternatively, Intervenors argue that Hecox’s claim is moot because she is
unlikely to complete the course hours to meet National Collegiate Athletic
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Association (NCAA) eligibility requirements to participate in the BSU track and
cross-country teams. However, even if Hecox fails to complete the NCAA course
hour requirements, she may obtain a waiver of eligibility from BSU and the NCAA
if she tries out and makes the women’s track and cross-country teams in Fall 2023.
And, regardless of NCAA eligibility, the Act bars her from even trying out for the
BSU women’s cross-country and track teams, again, absent the injunction. In
issuing the preliminary injunction, the district court reasoned that the Act
categorically barred Hecox from trying out for any BSU women’s sports team,
even if her try-out was unsuccessful, and that was likely an equal protection
violation. Hecox v. Little, 479 F. Supp. 3d 930, 959–66 (D. Idaho 2020). And the
Supreme Court has held that an “injury in fact” for Article III purposes can arise
from a barrier to participation, even if the participant does not ultimately benefit
from that participation. See Ne. Florida Chapter of Associated Gen. Contractors
of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993).
While Hecox did not try out for the women’s cross-country and track teams
in Fall 2022, due to illness and her father’s passing last spring, she has declared
that she has concrete plans to try out for the track and cross-country teams in Fall
2023.1 Regardless, Hecox cannot continue participating in the women’s club
1
Hecox filed a motion to supplement the record on appeal with a declaration (Dkt.
164). “Save in unusual circumstances, we consider only the district court record
on appeal.” Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). However,
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soccer team on which she is currently a member absent the preliminary injunction,
and her complaint broadly asserted her interest in playing on any sports team, not
just cross-country and track. Therefore, her claims are not moot.2
2. Hecox has Article III standing to sue. “Article III demands that an
actual controversy persist throughout all stages of litigation.” West Virginia v.
EPA, 142 S. Ct. 2587, 2606 (2022) (quoting Hollingsworth v. Perry, 570 U.S. 693,
705 (2013)). It has been established that “standing is measured at the time of the
complaint.” Arizona v. Yellen, 34 F.4th 841, 849 (9th Cir. 2022). At the time the
complaint was filed, Hecox had not yet tried out for the BSU women’s track and
cross-country teams in Fall 2020, because the Act categorically barred her from
doing so.
The district court’s determination that this case continues to present a live
controversy is affirmed.
“[c]onsideration of new facts may even be mandatory. . . when developments
render a controversy moot and thus divest us of jurisdiction.” Id. As the facts in
Hecox’s declaration bear directly on the question of mootness, we grant her motion
to supplement the record on appeal.
2
Intervenors additionally argue that the district court “inappropriately saddled
Defendants with the burden of producing more evidence.” However, the district
court found that even if Hecox had the burden of production, she had met that
burden. Moreover, the party asserting the benefits of mootness bears the burden of
establishing mootness. See Nw. Env't Def. Ctr. v. Gordon, 849 F.2d 1241, 1244
(9th Cir. 1988). Intervenors fail to identify any authority differentiating the burden
of production from the burden of persuasion in mootness, or how that difference
would have any bearing on the ultimate mootness determination here.
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AFFIRMED.
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