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Second Circuit Reconsiders Challenge to Connecticut Trans-Inclusive School Sports Policy

A transgender student athlete speaks at a press conference on LGBTQ rights at the U.S. Capitol
By Vaidehi Mehta, Esq. | Last updated on

For years, we have been covering the rising tide of legislation concerning transgender people, particularly youth. Just earlier this month, we dissected a Republican-backed bill that recently passed the House of Representatives. The bill aims to modify Title IX, the eminent civil rights law in the U.S.

On the one hand, federal judges have for the most part dismissed any lawsuits that would interfere with the bill. But, at the same time, the Second Circuit Court of Appeals has allowed a lawsuit brought by cisgender women athletes to proceed against the Connecticut Interscholastic Athletic Conference (CIAC) for the Conference's trans-inclusive policies.

These women are suing the CIAC over these policies in school sports within the state, claiming that permitting transgender athletes to compete against them was unfair. As the Second Circuit is set to review the lawsuit, let's break down the legal issues that are under review.

Cis Students Sue a Trans-friendly Policy

Since 2013, the CIAC has laid down policies permitting high school students to participate on gendered sports teams that are consistent with their gender identity. Obviously, CIAC has extended this right to transgender athletes.

CIAC's policy lays out that a student's gender identity should be based on what current school records reflect and the student's "daily life activities in the school and community." In addition, the Conference has said that gender identity must be "bona fide" and not determined "for the purpose of gaining an unfair advantage in competitive athletics."

In August 2020, four cisgender female high school students sued the CIAC, which is the organization that overseas high school sports in Connecticut. The four plaintiffs—Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti—filed the lawsuit in federal court over its trans-inclusive sports policies. These four women all ran track for their respective high school teams, and they were competitive at the statewide level. The case is titled Selina Soule et al. v. Connecticut Association of Schools, after one of the four plaintiffs.

Represented by Conservative Christian legal advocacy group Alliance Defending Freedom, the four athletes argued that allowing transgender women to compete against them violated their rights under Title IX. Remember, Title IX is the federal law (officially called The Education Amendments of 1972) that protects equal opportunities for women in education, including opportunities within the scope of school athletics programs.

The plaintiffs claimed that transgender women athletes possess an unfair advantage over cisgender women, because the former group possesses "the inherent physiological advantages of people who are born male." They claimed that the policies forcing them to compete against transgender female athletes deprived them of a fair shot at statewide titles. They also argued that their opportunities at future employment were negatively affected by policies allowing transgender women athletes to compete against them.

First Go At the Second Circuit

In December 2022, the Second Circuit Court of Appeals rejected the athletes' claims, upholding the dismissal of the original lawsuit. In that ruling, U.S. Circuit Judge Denny Chin observed that the presence of transgender women athletes in competitions, where the four athletes have competed, never created unfair disadvantages for the four cisgender women athletes. After all, the four had competed regularly in state track championships, and they had often placed first, Chin noted. But despite their successes, the plaintiffs sought to level what they maintained was an uneven playing field (no pun intended).

Andraya Yearwood and Terry Miller were two transgender athletes that had competed with the four plaintiffs. The plaintiffs requested that records of Yearwood and Miller's participation and scores be removed from any competitions in which they had competed with the four plaintiffs.

According to Judge Chin, however, the four had not suffered disadvantages because of records reflecting the transgender women athletes' participation. The judge noted that, while records reflect Yearwood's and Miller's participation, the records also documented impressive accomplishments by the four. He thus declined to grant this type of relief, and records continue to reflect the participation of the transgender athletes.

In handing down the court's decision, Judge Chin remarked that "discrimination based on transgender status is generally prohibited under federal law." In claiming this, he referred to Bostock v. Clayton County, Georgia. In that case, it was found that Title VII's prohibition on sex-based discrimination extends to the rights of transgender workers. (You can find an easy-to-read summary of that case here.)

The four cisgender women athletes asked the circuit court to reconsider the decision, and in February, the court agreed. The 13 judges on the Second Circuit voted, and "en banc" review was granted. Such a review means that the entire court's worth of judges will hear the case in a reconsideration of the issues that were raised in the original appellate proceedings. (Usually, cases are heard by a panel consisting of a few judges at a time, and not the entire set of judges.)

Constitutional Issues Raised

Clearly, this case raises significant questions about gender-based discrimination. What might be less obvious are the constitutional issues implicated.

The opinion handed down recently by the Second Circuit indicates that the types of relief the plaintiffs have at times requested would violate transgender athletes' rights under not only Title IX but also under the Equal Protection Clause of the Fourteenth Amendment.

To refresh: the Equal Protection Clause is a provision within the U.S. Constitution that provides equal protection under the law to all citizens of the United States. You can learn more about the relationship between this part of the 14th Amendment and gender-based discrimination here.

The ACLU has echoed the Second Circuit's interpretation of the case, saying that the plaintiff's lawsuit represents "an assault on the basic dignity and humanity of transgender people and a threat to the privacy and equality of all students" (emphasis added).

What To Expect

It's interesting that both proponents and adversaries of trans-inclusive policies seem to be using arguments based on the same line of reasoning. Each side purports to preserve protections against gender-based discrimination, but for different ultimate outcomes. The four cisgender women argue that Title IX should bar the participation of transgender women athletes, while the court and entities like the ACLU claim that the lawsuit poses a threat to constitutional protections against gender-based discrimination. The outcome of this case will ultimately rest on how a court defines what group of people is included within the protections that Title IX is meant to provide.

To learn more about laws and legal issues raised by the case involving CIAC, review FindLaw's Learn About the Law pages:

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