OCR Letter Says Connecticut’s Policy on Transgender Athletes Violates Title IX

By Mark Walsh — May 28, 2020 5 min read
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The U.S. Department of Education’s office for civil rights has determined that Connecticut’s interscholastic sports governing body and six school districts violated Title IX with a policy that permits transgender students to compete based on their gender identity.

OCR’s May 15 “letter of impending enforcement action” came to light Thursday. It follows an investigation conducted after a complaint filed on behalf of three female track athletes who alleged that the transgender participation policy of the Connecticut Interscholastic Athletics Association denied them athletic benefits and opportunities in violation of Title IX, which prohibits discrimination based on sex in federally funded educational programs.

The CIAC, “by permitting the participation of biologically male students in girls interscholastic track” under the transgender participation policy “denied female student-athletes benefits and opportunities,” the letter states.

Those benefits and opportunities include advancing to event finals and higher-level regional competitions; the chance to win individual and team state championships; to place higher in suchtevents; to receive awards and other recognition; and possibly to obtain greater visibility to colleges and other benefits, the letter said.

The CIAC, responding to changes in Connecticut law, amended its transgender participation policy in 2013 to defer to a student’s own gender identity and a school district’s determination of the student’s eligibility based on the student’s gender identity in school records and everyday school life.

In 2019, the participation of two transgender athletes who were identified male at birth in the girls’ track competitions prompted complaints from several parents and cisgender female athletes.

The OCR letter details interviews with the three female athletes who filed the complaint and includes page after page of results from the indoor and outdoor track seasons in 2017-18 and 2018-19, masking the identities of complainants and the transgender athletes.

The letter said the participation of the two transgender athletes, identified as Student A and Student B, had the most impact on a complainant described as Student 2.

“Specifically, Student A’s 1st place finish, in the finals of the 2018-2019 Outdoor Class S Statewide Championship for the 100-meter dash and the 200-meter dash, denied Student 2, who placed 2nd in both events, the benefit of a 1st place finish,” the letter states. “And Student A’s and Student B’s 1st and 2nd place finishes, in the 2018-2019 Indoor State Open Championship for the 55-meter dash, denied an opportunity for Student 2, who placed 3rd, to place 1st in the event and receive the benefit of a 1st place medal.”

“Denying a female student a chance to win a championship is inconsistent with Title IX’s mandate of equal opportunity for both sexes,” states the letter, which was signed by Timothy C.J. Blanchard, the director of OCR’s regional office in New York City.

The letter notes that OCR issued the enforcement action after the “failure” of the CIAC and the six school districts—Glastonbury, Bloomfield, Canton, Cromwell, Danbury, and Hartford—to “resolve the identified areas of noncompliance.”

OCR will either begin proceedings to terminate or defer federal financial assistance to the districts and the CIAC, which is both a direct and indirect recipient of federal aid, or will “refer the cases to the U.S. Department of Justice for judicial proceedings to enforce any rights of the United States under its laws,” the letter states.

The three female athletes who were the complainants to OCR have also sued the CIAC and several school districts raising the same Title IX claim. In that suit, President Donald Trump’s administration filed a statement of interest in March that said the CIAC’s transgender policy and its incorrect interpretation of Title IX prevents schools from taking account of “the real physiological differences between men and women.”

The Alliance Defending Freedom, which represents the complaining female students in both the lawsuit and the OCR complaint, welcomed the OCR enforcement letter.

“We’re encouraged that the Department of Education has officially clarified that allowing males to compete in the female category isn’t fair, destroys girls’ athletic opportunities, and clearly violates federal law,” ADF Legal Counsel Christiana Holcomb said in a statement. “Males will always have inherent physical advantages over comparably talented and trained girls—that’s the reason we have girls’ sports in the first place.”

[UPDATED Friday 10:15 a.m.] Chelsea Mitchell, one of the female track athletes represented by the Alliance Defending Freedom, said in a statement that she was “extremely happy and relieved” by the OCR’s stance.

“It feels like we are finally headed in the right direction, and that we will be able to get justice for the countless girls along with myself that have faced discrimination for years,” Mitchell said. “It is liberating to know that my voice, my story, my loss, has been heard; that those championships I lost mean something.”

The Associated Press noted Thursday that Mitchell won two indoor state track title races earlier this year over one of the transgender athletes, Miller.

The CIAC, in a statement on its website, said the association “adopted its inclusive sports participation policy for transgender athletes in accordance with federal and state guidance and consistent with its commitment to providing opportunities for sports participation to all student athletes in Connecticut.”

The association said state law “is clear and students who identify as female are to be recognized as female for all purposes-including high school sports.”

Meanwhile, the American Civil Liberties Union has intervened in the legal case in U.S. district court in Hartford on behalf of the two transgender athletes, Terry Miller and Andraya Yearwood.

“All that today’s finding represents is yet another attack from the Trump administration on transgender students,” said Chase Strangio, the deputy director for Trans Justice with the ACLU’s LGBT & HIV Project. "[Secretary Betsy] DeVos’s Department of Education is wrong on the law, and we will continue to defend transgender students under Title IX and the Constitution. Trans students belong in our schools, including on sports teams, and we aren’t backing down from this fight.”

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A version of this news article first appeared in The School Law Blog.