PJI Goes to Bat For Female Athletes in Idaho

Boise, ID—The Pacific Justice Institute (PJI) is stepping up to the plate in Idaho to help ensure fairness for girls there who compete in interscholastic sports. 

Ray Hacke, one of PJI’s Pacific Northwest-based staff attorneys, testified before the Idaho House of Representatives on Wednesday in favor of a bill that would prohibit biological males from competing as “girls” in interscholastic sports. Hacke is the author of an article titled “Girls Will Be Boys, and Boys Will Be Girls”: The Emergence of the Transgender Athlete and a Defensive Game Plan For High Schools That Want to Keep Their Playing Fields Level – For Athletes of Both Genders. Published in multiple legal journals, Hacke’s article explains how the U.S. Constitution’s Equal Protection Clause and Title IX, the federal law aimed at providing equal educational opportunities for women and girls, all but mandate that schools maintain separate teams for boys and girls to ensure that girls get a full and fair opportunity to compete. 

“The Equal Protection Clause does not require state governments to treat things which are different in fact as though they are legally the same,” Hacke said. “A boy who says he’s a girl is quite different from an actual girl. And multiple courts have held that because girls are typically at a physiological disadvantage when competing against boys, letting boys play on girls’ teams would relegate girls to being benchwarmers or spectators in their own sports.” 

Hacke is uniquely qualified to testify on the Idaho bill, whose sponsor is Barbara Ehardt (R-Idaho Falls), a former NCAA Division I basketball player and coach. Before becoming an attorney who practices constitutional law, Hacke was an award-winning sportswriter who regularly covered high school and college sports. He still covers sports on a limited basis for various publications and currently coaches his 8-year-old daughter in basketball and softball. 

In recent months, legislators in multiple states—Arizona, Georgia, Idaho, New Hampshire, Tennessee, and Washington —have introduced bills seeking to ensure that women and girls competing in interscholastic athletics do not have to compete against biological males who identify as “transgender.” The bills are a response to the success that several biologically male athletes have had competing against females at both the high school and college levels—particularly in the sport of track and field. In Connecticut, for instance, two males who identify as female have won a combined 15 indoor and outdoor sprint races since 2017. 

“Bills like the one in Idaho have nothing to do with prejudice toward transgender people,” PJI President Brad Dacus said. “They have to do with fundamental fairness—and in some cases, safety—in girls’ sports. While transgender people deserve compassion and understanding, that doesn’t mean we should let them compete as whatever gender they choose —especially when actual girls would be disadvantaged.”