Law & Courts

Appeals Court Upholds Connecticut’s Pro-Transgender Student Athletics Policy

By Mark Walsh — December 16, 2022 3 min read
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A federal appeals court on Friday upheld the dismissal of a lawsuit challenging Connecticut’s policy that allows transgender girls to compete in girls’ sports, holding that the cisgender female track athletes challenging the policy lacked legal standing and that the state athletics body could not have been on notice that its policy potentially violated Title IX.

The unanimous decision in the high-profile case of Soule v. Connecticut Association of Schools, by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, is modest in scope in the sense that the court did not outright decide whether the pro-transgender policy should be upheld—or as the plaintiffs argued, struck down—under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded education programs.

The appeals court did, however, appear to express agreement with the interpretation that Title IX does protect transgender students. As the debate over transgender students rights and battles over whether transgender female athletes may compete at the highest levels of interscholastic sports rages on, the decision is likely to be scrutinized closely.

The 2nd Circuit panel upheld the district court decision that the case was moot because two prominent transgender track athletes, Andraya Yearwood and Terry Miller, had graduated from high school and the four cisgender female athletes who objected to the transgender-inclusive policy of the Connecticut Interscholastic Athletics Association were unlikely to have to compete against other transgender girls before they graduated.

The appeals court also rejected arguments by the cisgender female athletes that state athletic records should be corrected because the association’s policy deprived them of “the chance to be champions.”

The court noted that the cisgender track athletes sometimes defeated Yearwood and Miller in state competitions.

“Revising the records would not give plaintiffs ‘a chance to be champions’,” Judge Denny Chin wrote for the panel. “Plaintiffs have not shown that there is a proper legal framework for invalidating or altering records achieved by student-athletes who competed in conformity with the applicable rules.”

The appeals court went on to hold that the athletics association, a recipient of federal funding subject to Title IX, was not on notice that its policy might violate the federal anti-discrimination law. The court noted that guidance from the U.S. Department of Education’s office for civil rights has “fluctuated” under the administrations of Presidents Donald Trump and Joe Biden.

See also

Sivan Kotler-Berkowitz, 17, a transgender student-athlete, plays soccer with his brother, Lev, at a Massachusetts park on Sept. 3, 2022.
Sivan Kotler-Berkowitz, 17, a transgender student-athlete, plays soccer at a Massachusetts park.
Angela Rowlings for Education Week

“Even when promulgating and rescinding its uidance, OCR never clearly provided that allowing transgender students to participate on athletic teams consistent with their gender identity violates Title IX,” Chin said.

The 2nd Circuit recognized the U.S. Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 protects employees based on sexual orientation and gender identity. Chin noted that several lower courts have ruled that Title IX, which has similar language on sex discrimination as Title VII, protects transgender students in schools.

“Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender-specific sports teams, such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the policy violates Title IX,” Chin said.

The American Civil Liberties Union, which represents the transgender athletes as intervenors in the case, hailed the ruling.

“Trans student-athletes belong on our sports teams and in our schools, and all trans youth should be celebrated and protected for who they are,” Elana Bildner, a senior staff lawyer with the ACLU Foundation of Connecticut, said in a statement. “Today, the courts have once again dismissed this lawsuit seeking to attack trans student-athletes. The record shows that our clients played by the rules, and the court agreed.”

Christiana Kiefer, a senior counsel with Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization representing the cisgender athletes, said in a statement, “The 2nd Circuit got it wrong, and we’re evaluating all legal options, including appeal. Our clients—like all female athletes—deserve access to fair competition. Thankfully, a growing number of states are stepping up to protect women’s athletics.”

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