Ninth Circuit, Hecox v. Little: on remand after West Virginia v. B. P. J., Idaho sports case held moot

What happened

On November 5, 2026, a panel of the U.S. Court of Appeals for the Ninth Circuit (Judges Kim McLane Wardlaw, Ronald M. Gould and Morgan Christen) issued a published order in Hecox v. Little, Nos. 20-35813 and 20-35815. The case reached the panel on remand from the Supreme Court. The panel vacated the district court's preliminary injunction against Idaho's enforcement of the Fairness in Women's Sports Act, Idaho Code §§ 33-6201 to 33-6206. It sent the case back to the district court with instructions to dismiss it as moot. The order is unsigned and lists no concurrence or dissent.

What the order says

The order begins with the Supreme Court's decision. On June 30, 2026, in West Virginia v. B. P. J., the Supreme Court reversed the Ninth Circuit's earlier decision affirming the injunction. In the panel's words, "the Court rejected Hecox's constitutional challenges under the Equal Protection Clause," and its holding "clearly rejected the narrow basis upon which we affirmed the district court's preliminary injunction." After the remand, the panel asked the parties for supplemental briefing on whether the case was moot.

The panel held that it is: "We hold that this action is moot." It noted that the Supreme Court had rejected an earlier suggestion of mootness because Hecox "remains an enrolled student at Boise State." The order states that both sides agree Hecox is not enrolled at Boise State. The Boise State Registrar also filed a declaration saying Hecox is not currently enrolled, and the panel granted a motion to add that declaration to the record.

Hecox's supplemental brief said she "intends to re-enroll in Spring 2027." The panel held that statement was not enough to keep the case alive. It explained that "when a party relies on a declaration of future intent to avoid mootness, such declaration must be sufficiently concrete." In 2023 the court had found the case not moot because Hecox then "expressed a concrete plan to re-enroll" and had spoken with an academic advisor. By contrast, the panel wrote, "here she offers only a conclusory statement of intent to enroll in Spring 2027 without identifying tangible or actual steps taken to effectuate re-enrollment." The panel concluded that "Hecox's non-enrollment means this case is no longer 'a present controversy as to which effective relief can be granted.'"

The order does not address the merits of the Idaho law beyond describing what the Supreme Court decided.

Where it sits in the record

West Virginia v. B. P. J., 609 U.S. 958 (2026), decided No. 24-43 together with No. 24-38, Little v. Hecox. Justice Kavanaugh wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Barrett. Justices Thomas and Gorsuch filed concurring opinions. Justice Sotomayor, joined by Justices Kagan and Jackson, concurred in the judgment in part and dissented in part. Justice Jackson also wrote separately, concurring in the judgment in part and dissenting in part. The Court reversed both lower-court decisions and remanded.

Mootness was argued in the Supreme Court as well. In footnote 3, the majority noted that in September 2025, after certiorari was granted, Hecox said she would "cease playing women's sports in any context covered by" the Idaho law. The majority wrote that "that shift may not be permanent, particularly given Hecox's prior change in position," and that post-certiorari actions that would "insulate a decision from review by this Court must be viewed with a critical eye." It concluded: "Hecox remains an enrolled student at Boise State. Hecox's case is not moot."

Justice Sotomayor's opinion took the other view of that question. She wrote that the majority decided Hecox's challenge "even though Hecox has sworn that she has stopped playing, and will never again play, any sport covered by the ban," and that "no evasion of review was ever possible here because identical issues are pending before (and have now been resolved by) the Court." In her view, the majority "accomplishes nothing by stretching the bounds of Article III to decide this moot case."

The Ninth Circuit's November 5 order applies the mootness question to Hecox's enrollment status now that she is no longer enrolled. On November 9, 2026, the Supreme Court cited B. P. J. and United States v. Skrmetti when it granted, vacated and remanded Roybal v. Griffith, No. 25-442, to the Tenth Circuit.