Mary Kate Marshall fell in love with track and cross-country in high school. 

Running “gives me so much confidence,” Marshall said. Now an athlete at Idaho State University, Marshall is fighting for Idaho’s Fairness in Women’s Sports Act—and for every woman’s and girl’s right to compete on a level playing field. 

The Fairness in Women’s Sports Act prohibits biological men who “identify” as women from competing in women’s sports. Idaho Gov. Brad Little signed the legislation in March 2020, but the bill was quickly challenged by the American Civil Liberties Union. Alliance Defending Freedom, a Christian legal nonprofit, represents Marshall and fellow Idaho State University track athlete Madison Kenyon in their efforts to reinstate the act and protect women’s sports. 

Marshall and Alliance Defending Freedom attorney Christiana Holcomb join the “Problematic Women” podcast to explain the significance of the court battle for Idaho and for women’s sports across the nation. 

Also on today’s show, Melanie Israel, a policy analyst with the DeVos Center for Religion & Civil Society at The Heritage Foundation, explains what you need to know about the U.S. Supreme Court’s decision to hear arguments in a case that could upend the abortion precedent set by Roe v. Wade. And as always, we’ll be crowning our “Problematic Woman of the Week.”

Listen to the podcast below or read the lightly edited transcript.

Virginia Allen: I am so pleased to be joined by Alliance Defending Freedom attorney Christiana Holcomb and Idaho State University student athlete Mary Kate Marshall. Thank you both so much for being here.

Christiana Holcomb: Thank you for having us.

Mary Kate Marshall: Thank you for having us.

Allen: So, a couple of weeks ago, we shared a little bit with our listeners about the situation that’s going on in Idaho regarding the Fairness in Women’s Sports Act. But, Christiana, I want to ask you to take us back to last year when Idaho Gov. Brad Little signed the Fairness in Women’s Sports Act into law. Could you just explain what exactly the purpose of this legislation is?

Absolutely. Well, across the country, we’re seeing state athletic associations and lawmakers pass policies that allow biological males to come in and to dominate the girls’ category. One prominent example, of course, is what we’ve seen in Connecticut, and Alliance Defending Freedom is representing female athletes there, but also in the state of Idaho, where Mary Kate is from, a male athlete from the University of Montana dominated the female category. [He had] previously competed as a male, and in fact, set times that would’ve absolutely crushed the NCAA women’s record in those categories at that time.

So, Idaho looked at this, [and] lawmakers said that we don’t want to see girls in our state lose out on podium spots and advancement opportunities, championship titles, scholarship opportunities due to males competing in the girls’ category. So, they introduced the Fairness in Women’s Sports Act that was later signed by the governor, and just shortly thereafter challenged by the ACLU.

Allen: And why did the ACLU challenge this legislation?

Well, the ACLU believes that biological males who “identify” as female ought to have the right to compete in the girls’ category. And that flies in the face of commonsense, and frankly, nearly 50 years of law and policy in our country, where we’ve set aside the girls’ category for a reason. And that’s because we recognize there are inherent physical differences that give biological males an inherent athletic advantage over female athletes.

In fact, the studies show that males have on average a 10% to 50% performance advantage over comparably fit and trained female athletes. And so, if we want a future where girls like Mary Kate can be on the podium and can get the recognition that her hard work deserves, then we have to protect the integrity of women’s sports.

Allen: Absolutely. Mary Kate, this act, as Christiana has explained, it personally affects you. You are a student at Idaho State University, and I want to get into a little bit about why you signed onto this lawsuit in just a few minutes. But first, I would love to ask you a little bit about your experience running track. What races do you run?

Yeah, my main event is 800 [meters], but I also do the 400 and the 1500, and mile indoors.

Allen: Those are hard races. I used to run as well, and I was much more of a short-distance runner. I always feel like the 400 was a tease. It’s, like, still a sprint, but not really. It’s a grueling race. What first got you into track?

Well, I actually started running in eighth grade. I did track. And then into high school, I started doing cross-country and track, and that’s just when I fell in love with running and knew I wanted to do it in college, too.

Allen: So, what for you is the most rewarding part of running?

Definitely just the feeling after I’m done running, and just, I like to call it a runner’s high. It’s just like I feel like I can keep going forever, and I just feel so good about myself and just it gives me so much confidence.

Allen: Oh, I love that. So, let’s talk a little bit about the Fairness in Women’s Sports Act and how it impacts you. As Christiana explained, the act is just intended to protect women’s sports and opportunities for women, and ensured that only women and girls can actually compete in women’s sports.

But when the governor signed the law in Idaho, it didn’t even have a chance to go into effect before the ACLU challenged it. Mary Kate, have you ever had to compete against a biological male in a track event?

Yeah, actually my first collegiate cross-country race, I competed against a biological male. And going into it, I was already pretty nervous—my first college cross-country race, and this just made me so much more nervous. And after the race, I got beat by this athlete, and so did all of my other teammates. And it was just very disheartening to see one of our first races of the season and already we’re having to run against a biological male.

Allen: So, when you lined up, did you know that you were running against a biological male, or was it not until after the race that you found out?

Yeah, we actually found out a couple of weeks before our season that we were going to be competing against a biological male.

Allen: So, what was running through your head leading up to that race?

I really didn’t know what to expect. I just know that males are much faster than females. So, how is this going to be fair? But I wanted to stay open-minded and see what’s going to happen, because we haven’t seen this before. And after the race, I knew this isn’t fair.

Allen: What were your thoughts following the race, and did that individual take first place?

The athlete didn’t take first place, but this athlete was amongst the top 10, I believe. And it was just very discouraging to see this athlete up there and just knowing that however hard I train probably is not going to do anything, because this athlete has so much more advantages than I do. And I just knew that this was going to be an issue.

Allen: Yeah, so since that first race, have you had to compete against any other biological men?

I competed against a biological male one other time in track and also lost.

Allen: OK. Wow. So Christiana, Alliance Defending Freedom is standing up in defense of Idaho’s Fairness Women’s Sports Act. And earlier this month, Alliance Defending Freedom attorneys argued before the 9th Circuit Court of Appeals that the act should be reinstated. Could you just explain what the arguments were that ADF made before those three judges not too long ago?

Yes, absolutely. So, it’s our privilege to represent both Mary Kate and her colleague, Madison Kenyon, two very brave female athletes who wanted to stand up and say, “No, we want to protect and preserve opportunities for young women in our state.” So, as you mentioned, we did have oral arguments before the 9th Circuit Court of Appeals.

One of the claims the ACLU is making is that it somehow violates equal protection to have women’s sports protected for biological females. And that’s simply false. There is nothing in the Constitution that requires states to give special privileges to males who “identify” as female and want to compete in girls sports. In fact, it’s just the opposite.

The Supreme Court has been really clear that it’s appropriate for the law to recognize the real physical differences between men and women. The 9th Circuit has also affirmed that it’s constitutional and consistent with federal law to protect the integrity of women’s sports. So, we are ultimately optimistic that we’ll be able to protect Idaho’s Fairness in Women’s Sports Act, and by so doing, ensure that young women across the state of Idaho can compete on a fair, level playing field.

Allen: That’s so critical. We have talked a lot on this show about the case in Connecticut that you all were, of course, heavily involved with. So, athletes Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti, along with Alliance Defending Freedom, you all represented those four track athletes in the case, Soule v. Connecticut Association of Schools.

In that case, [you] sought to prevent biological men from being allowed to compete in women’s sports in the state of Connecticut. Well, the judge just recently declared that case moot because the two transgender athletes involved have now graduated. Christiana, what do you think the judges’ decision in the situation in Connecticut and declaring that case moot could mean for this case in Idaho?

Well, they both obviously are there and designed to protect the integrity of women’s sports. Different legal theories involved, and respectfully, I do think the court in Connecticut got it wrong. Young women across the state of Connecticut had lost out on advancement opportunities, championship titles, medals, appropriate placement, and there are injuries that had taken place that the court can fix.

So, again, respectfully, I think the court very much got it wrong, which is why we look forward to appealing that up to the 2nd Circuit Court of Appeals here in the next week or so.

But again, Title IX was enacted nearly 50 years ago for the express purpose of stopping discrimination against women and ensuring that female athletes like Mary Kate have equal athletic opportunities with males. That has not happened when someone with an inherent physical advantage comes in and dominates the female category. So, ultimately, we are optimistic that we will be able to restore fairness in a level playing field to women’s sports.

Allen: Mary Kate, I want to ask you why did you decide, “You know what, I want to sign on to this lawsuit?” You’re a college student. Most college students are not taking on extra work or political activism, but it’s great to see that you’re taking a stand. Why did you decide to do that?

Yeah, this issue is so important, and not just for me and my teammates, but for future generations of women. I’m trying to protect women’s sports, and it’s so important to me. It’s been a part of my entire life, and I want that to be how it is for other girls. And, especially, one of my teammates was pushed off the podium by a biological male, and I knew that should never happen again.

Allen: Yeah, absolutely. Christiana, we have many times on this show talked about that this issue isn’t going away. We keep seeing it come up. And there’s a part of me that wonders, are we eventually going to see a case like this rise to the level of the Supreme Court? What are your thoughts on that?

I think it’s entirely possible. Either one of these cases, out of Connecticut or Idaho, could certainly reach the U.S. Supreme Court, but I hope it doesn’t need to get that far.

Look, this is really a commonsense issue. The vast majority of the American people, well over 70%, agree that it’s not fair to allow males to compete in women’s sports. Again, the whole purpose and promise of Title IX for young women was to protect the integrity of the female category and give girls like Mary Kate these athletic opportunities.

So, this is a commonsense issue. This should not need to reach the U.S. Supreme Court. And frankly, we hope that the state athletic associations will do the right thing and protect athletic opportunities for female athletes.

Allen: Do we know when we might get a ruling from the 9th Circuit on the Idaho case?

No. It’s entirely at the pleasure of the court. So, we wait. I expect it could be a couple of months before we receive any sort of written decision.

Allen: Final thoughts? Anything you all would like to add?

So, I just want to say that me and my teammates put in 20 hours a week, and so, we work really hard for what we do. And I just want to empower all women out there just to stand up for women and just know that I’m fighting for you and that I’m not going to stop until we have fair play. So, thank you.

Holcomb: And I just want to underscore there are real physical differences between the sexes, and it’s appropriate for law and policy to recognize that, especially in contexts like sports, where there are these real athletic advantages that males have, and we want to preserve and protect the integrity of women’s sports so that girls like Mary Kate can have an athletic future.

Allen: Thank you both. We really, really appreciate you coming on the show and really appreciate your time.

Thanks for having us.

Marshall: Thank you for having us.