Federal Appeals Court Rejects Challenge To Connecticut Policy Permitting Boys Who Identify As Girls To Play in Girls’ Sports

Federal Appeals Court Rejects Challenge To Connecticut Policy Permitting Boys Who Identify As Girls To Play in Girls’ Sports

We are watching in real time the destruction of the traditional liberal feminist movement under the weight of “trans rights,” as both the meaning of what it is to be a “woman” and traditional women’s spaces (single sex bathrooms and locker rooms, victim support spaces, and even prisons) increasingly are opened up to males who identify as females. If a recent appeals court decision is any indication, some of the most important spaces — women’s and girls’ sports — will not be spared.

We’ve covered Lia Thomas, the U. Penn ‘trans female’ swimmer, and other examples proving what we all know and science proves — that on average males who have gone through puberty have a significant power advantage over females, and even non-top tier high school and college level male athletes surpass the best females in sports where strength matters.

Connecticut is ground zero in the legal fight to preserve female sports.

We previously covered in detail the Connecticut developments, including a case in which female student athletes are represented by Alliance Defending Freedom (ADF):

• Connecticut: Transgender High School Sprinters Claim Top Spots In Girls Indoor Track Championship (February 2019)
• Connecticut: High School Athletes File Federal Complaint Over ‘Transgender Women’ Participation in Female Sports Competitions (June 2019)
• Connecticut: Judge Rules Transgender Sprinters Competing Against Girls Cannot Be Called “Males” In Court . . . Or Else (May 2020)
• Judge Dismisses Lawsuit to Block Transgender Females From Competing in Female Sports (April 2021)
• Connecticut Female Athlete: ‘Transgender Athletes’ Make Sports ‘Unfair’ (April 2021)
• USA Today Stealth Edits Female Athlete’s Op-Ed Because She Called Transgender Women ‘Males’ (May 2021)

The Connecticut girls lawsuit Complaint alleged, in part;

1. The Plaintiffs are three high school girls who compete in interscholastic girls’ track and field in Connecticut. Like large numbers of female athletes around the nation, each Plaintiff has trained much of her life—striving to shave mere fractions of seconds off her race times—in order to experience the personal satisfaction of victory, gain opportunities to participate in state and regional meets, gain access to opportunities to be recruited and offered athletic scholarships by colleges, and more.

2. Unfortunately for Plaintiffs and other girls in Connecticut, those dreams and goals—those opportunities for participation, recruitment, and scholarships—are now being directly and negatively impacted by a new policy that is permitting boys1 who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identity.

3. This discriminatory policy is now regularly resulting in boys displacing girls in competitive track events in Connecticut—excluding specific and identifiable girls including Plaintiffs from honors, opportunities to compete at higher levels, and public recognition critical to college recruiting and scholarship opportunities that should go to those outstanding female athletes.

4. As a result, in scholastic track competition in Connecticut, more boys than girls are experiencing victory and gaining the advantages that follow even though postseason competition is nominally designed to ensure that equal numbers of boys and girls advance to higher levels of competition. Compared to boys—those born with XY chromosomes—in the state of Connecticut those who are born female—with XX chromosomes—now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records.

5. This reality is discrimination against girls that directly violates the requirements of Title IX: “Treating girls differently regarding a matter so fundamental to the experience of sports—the chance to be champions—is inconsistent with Title IX’s mandate of equal opportunity for both sexes.” McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 295 (2d Cir. 2004).

The Complaint explained the physiological advantage:

43. While boys and girls have comparable athletic capabilities before boys hit puberty, male puberty quickly increases the levels of circulating testosterone in healthy teen and adult males to levels ten to twenty times higher than the levels that occur in healthy adult females, and this natural flood of testosterone drives a wide range of physiological changes that give males a powerful physiological athletic advantage over females.

44. The athletic performance-enhancing effects of testosterone are well known, and the anabolic steroids too often used by athletes to gain an unfair and prohibited advantage are often synthetic modifications of testosterone. Basically, from puberty on, boys and men have a large, natural, and equally unfair “doping” advantage over girls and women.

45. Physiological athletic advantages enjoyed over girls and women by similarly fit males after puberty include:

a. Larger lungs and denser alveoli in the lungs, enabling faster oxygen uptake;
b. Larger hearts and per-stroke pumping volume, and more hemoglobin per unit of blood, all enabling higher short-term and sustained levels of oxygen transport to the muscles;
c. An increased number of muscle fibers and increased muscle mass (for example, men have 75%-100% greater cross-sectional area of upper arm muscle than do comparably fit women, while women have 60-70% less trunk and lower body strength than comparably fit men);
d. Higher myoglobin concentration within muscle fibers, enabling faster transfer and “cellular respiration” of oxygen within the muscle to unleash power;
e. Larger bones, enabling the attachment of greater volumes of muscle fiber;
f. Longer bones, enabling greater mechanical leverage thus enabling males to unleash more power, e.g., in vertical jumps;
g. Increased mineral density in bones resulting in stronger bones, providing superior protection against both stress fractures and fractures from collisions;
h. And, of course, U.S. adult males are on average 5 inches taller than U.S. adult women.

46. Meanwhile, female puberty brings distinctive changes to girls and women that identifiably impede athletic performance, including increased body fat levels which—while healthy and essential to female fertility—creates increased weight without providing strength, as well as wider hips and different hip joint orientation that result in decreased hip rotation and running efficiency.

47. These are inescapable biological facts of the human species, not stereotypes, “social constructs,” or relics of past discrimination.

48. As a result of these many inherent physiological differences between men and women after puberty, male athletes consistently achieve records 10-20% higher than comparably fit and trained women across almost all athletic events, with even wider consistent disparities in long-term endurance events and contests of sheer strength such as weight-lifting.

***

51. For example, in 2017, thousands of men and boys achieved times in the 400m faster than the best lifetime performances of three women Olympic champions in that event. Each year, thousands of men—and dozens or hundreds of high school boys under the age of 18—achieve times (or heights or distances) in track events better than the world’s single best elite woman competitor that year.

All the Connecticut policy required was “identification” as a gender:

71. The CIAC Policy determines—and requires member-schools to determine—eligibility to compete in sex-specific athletic competitions solely based on “the gender identification of that student in current school records and daily life activities in the school . . . .”

72. As detailed later in this Complaint, CIAC and its member-schools have permitted male students to switch, from one season to the next, from competing in boys’ events to competing (and winning) in girls’ events.

The Complaint did not survive in the District Court, and now it has not survived in the Second Circuit Court of Appeals. In an Opinion issued on December 16, 2022, the appeals court upheld the dismissal on a number of procedural grounds: “Like the district court, we are unpersuaded, with respect to the claim for an injunctionto alter the records, that the Plaintiffs have established the injury in fact and redressibility requirements for standing; both fail for reasons of speculation.” As to the claim for damages, the Court held that the conference and member schools “did not have adequate notice that the Policy violated Title IX.”

I usually quote extensively from court decisions, but that’s tough here because the Opinion is in a scanned form on the PACER docket, not in the normal pdf. format, so I can’t copy and paste from the scannded pdf. (which essentially is just images). So you will have to read it yourself.

Politico mercifully transcribed a key substantive part of the ruling:

The judges also leaned on past circuit decisions and the Supreme Court’s landmark opinion in Bostock v. Clayton County, which says it is unlawful to discriminate against people based on their gender identity or sexual orientation in the workplace.

“Title IX includes language identical to that in Title VII, broadly prohibiting discrimination ‘on the basis of sex,’” the judges wrote. “Thus, it cannot be said that the Policy — which prohibits discrimination based on a student’s transgender status by allowing all students to participate on gender specific teams consistent with their gender identity — ‘falls within the scope of Title IX’s proscriptions.”

ADF issued the following 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. Right now, 18 states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports. Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics, and ADF remains committed to protecting the future of women’s sports.”

The ACLU celebrated:

VICTORY: Today the Second Circuit Court of Appeals upheld a student athletic policy in Connecticut allowing transgender students to play on the teams consistent with their gender identity.

Trans youth have a right to equal and fair play.

— ACLU (@ACLU) December 16, 2022

If mere gender identification is enough, it’s hard to see how girls’ and women’s sports survive at an elite level. It doesn’t take many males identifying as females to take the top places.

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