Image 01 Image 03

Appeals Court Hears Arguments Whether Connecticut Female Athletes Can Sue To Stop ‘Transgender’ Participation

Appeals Court Hears Arguments Whether Connecticut Female Athletes Can Sue To Stop ‘Transgender’ Participation

Second Circuit seems sympathetic to the idea that the athletes’ case is not moot simply because they graduated from high school

As we reported last week, four Connecticut female former high school track athletes have travelled a long and winding road through the federal court system just to have their case heard: Preview of Appellate Argument in Connecticut Transgender In Women’s Sports Case

The case involves female high school track athletes who were forced to compete against biological males and who predictably lost, resulting in the following sequence of events:

First came a federal administrative complaint:

In June of 2019, as we reported, Connecticut: High School Athletes File Federal Complaint Over ‘Transgender Women’ Participation in Female Sports Competitions, Selina Soule, Chelsea Mitchell, and Alanna Smith, all high school track athletes, represented by the Alliance Defending Freedom, filed a complaint with the U.S. Department of Education’s Office of Civil Rights [OCR].  The complaint “alleged a violation of Title IX in that the biological girls were being deprived of ‘opportunities for participation, recruitment, and scholarships.'”  The complaint also sought “to reverse a Connecticut Interscholastic Athletic Conference [CIAC] rule allowing athletes to compete in sports corresponding with their gender identify.”

Next came a federal court complaint:

On February 12, 2020, Soule, Chelsea Mitchell, and Alanna Smith filed a federal court Complaint in the U.S. District Court for the District of Connecticut.  The case was assigned to Senior District Court Judge Robert N. Chatigny, who was appointed to the federal bench by Bill Clinton in 1994.

Like the OCR complaint, in court Soule et al. argued that CIAC violated Title IX through its transgender policy by allowing biological males to compete on girls’ sports teams.  This allegedly deprived the plaintiffs of “opportunities for participation, recruitment, and scholarships.”

After ruling that the high school track athlete plaintiffs’ counsel could not use the term “male” to describe the biological male athletes the plaintiffs had to compete against, the court dismissed the case, not on the merits of CIAC’s transgender policy, but rather “because the two transgender female athletes and two of the…plaintiffs graduated,” as we had previously reported: Judge Dismisses Lawsuit to Block Transgender Females From Competing in Female Sports.

So naturally the plaintiffs appealed, and despite a recent U.S. Supreme Court case ruling that said a case was not moot and therefore non-justiciable even if the only damages a plaintiff could recover was $1 in nominal damages, the three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed the district court’s dismissal, as Professor Jacobson had comprehensively reported in December 2022: Federal Appeals Court Rejects Challenge To Connecticut Policy Permitting Boys Who Identify As Girls To Play in Girls’ Sports.

Next, the entire Second Circuit, in an extremely unusual move, and without any motion or apparent input from anyone (i.e. sua sponte), decided to re-hear the case en banc, i.e. with all active judges present:

The en banc hearing was scheduled for Tuesday, June 6, 2023 at 2 p.m., and started right on time, as The Christian Post reports:

2nd Circuit weighs female athletes’ case against Connecticut’s trans athletes policy

A federal appeals court heard oral arguments on whether four female athletes were harmed by being forced to compete with biological males who identify as female in high school and if they qualify for damages.

The 2nd U.S. Circuit Court of Appeals held an en-banc hearing in the case of Selina Soule et al. v. Connecticut Interscholastic Athletic Conference on Tuesday afternoon.

At issue in the case are four former female high school track and field athletes — Selina Soule, Chelsea Mitchell, Alanna Smith and Ashley Nicoletti — who say they were wrongfully deprived of an opportunity to run in the New England regionals in 2019 because they had to compete against trans-identified athletes.

The entire circuit will have to decide whether the complaint from the four athletes is moot because they graduated from high school since the lawsuit was filed and if their complaint is redressable.

The plaintiffs, now appellants, argued first because they lost in the district, trial-level, court:

John Bursch of the Alliance Defending Freedom argued on behalf of the four athletes and urged the court to reverse earlier rulings against the plaintiffs and remand the case back to the lower court for a “merits determination.”

Bursch said in his opening statement that the harm the athletes experienced was redressable by the CIAC by “correcting the athletic records” and giving “nominal damages” to the plaintiffs.

Bursch argued that the plaintiffs suffered harm from the CIAC policy allowing biologically male trans-identified athletes to compete in female competitions “the moment that they stood at the race line and had biological male competitors and then lost to those competitors in their races.”

“Now the effects of that can flow into all kinds of different things,” Bursch continued. “If you think about this in terms of consequential damages, one consequence is that they didn’t advance to additional races. Another consequence is that they didn’t get the gold medal.”

“Another consequence is that when they applied to colleges, their records weren’t as shiny as they should have been. Another consequence is when they apply for jobs, their employment resume doesn’t show their accomplishments.”

After having listened intently to the oral argument, which you can review here, I would have to say that Bursch acquitted himself well, with several interesting questions coming his way from a very engaged, “hot bench.”  For example, Judge Beth Robinson, a recent Biden appointee to the bench, asked if the plaintiffs won their case if that meant taking recognition away from the transgender athletes who “did nothing wrong.”  Bursch answered in the affirmative and gave several examples of when similar situations have arisen due to misapplication of law by the organizations, not the competitors, involved.

Another key question from Judge Raymond Lohier was whether loss of job prospects due to diminished sports records was too speculative to constitute redressable damages, especially in light of the fact that there was no mention of that in the federal court complaint.  Bursch countered that such damages flow from the initial harm and noted that the complaint was filed while the plaintiffs were still in high school, and that if the appellate court were to reverse the district court and remand for further proceedings, the plaintiffs would amend their complaint to show that their job prospects were negatively impacted by the loss of state championships and other athletic awards.

Next up was the CIAC:

Peter Murphy of Shipman’s School Law Practice Group defended the CIAC, arguing that “the plaintiffs have not alleged any concrete or imminent harm from the mere existence of these records from years-old races.”

“They don’t claim, for example, that anything specifically turns on these results,” Murphy said, adding, “we don’t know how these races would have turned out” had the trans-identified athletes not participated.

Murphy denied that the CIAC policy, first enacted in 2013, is discriminatory, citing federal guidance from the time that encouraged such policies.

My review shows that Murphy took some lumps from several members of the court.  One key question involved whether the transgender athletes whom the plaintiffs had competed against, and who have been allowed to intervene as interested parties in the case, would have standing if they had been prevented from competing, and Murphy’s answer was “likely not,” without providing much in the way of reasoning as to why not.  In addition, when asked if an athlete who had lost to someone found to have used performance enhancing drugs would have standing, Murphy answered that that was “different” and that such a plaintiff “potentially” might have standing, without offering much explanation.

Next up was counsel for the transgender athlete intervenors:

Joshua Block of the American Civil Liberties Union represented the intervenors in the case, two trans-identified athletes who participated in female sports under the CIAC policy.

Block argued that the plaintiffs’ argument “fails on the merits,” pointing to how the trans-identified athletes lost a couple of their races.

What this report leaves out that “the merits” were not part of this appeal, and in fact on the issues before court, i.e. whether the case was rendered moot by the plaintiffs and the transgender athletes graduation, Block agreed with the plaintiffs that it was not.  He also vehemently disagreed with Murphy’s suggestion that his clients would not have standing if they were deprived of the opportunity to compete in the races with the  plaintiffs.

One other item of interest was the court’s discussion of the Pennhurst Doctrine, which holds that states must be given clear notice of what the federal government requires before they are penalized or held to account.  The plaintiffs argue that Title IX itself provides such clear notice, but the CIAC, through Mr. Murphy, made a good point that Connecticut had received a lot of guidance from the Obama administration indicating that allowing biological male students on to girls’ athletic teams was a good idea, perhaps even required.

Prediction: I normally don’t go out on a limb but I do think that the plaintiffs here have a fighting chance of winning this round and having the case sent back down to the district court for proceedings “on the merits.”  I base that on the Second Circuit deciding to re-hear the case en banc on their own, and the reception counsel for the defendants received at the oral argument.  The Pennhurst Doctrine is a bit of a wild card, but I don’t think it will affect the case at this stage.  We’ll see.

How the district court’s proceedings on the merits will turn out, should the case be reversed and remanded back to the trial level, is anybody’s guess, but there are further appeals sure to follow no matter who wins, and we will keep you updated until the case is finally resolved, hopefully in the plaintiffs’ favor.

In the meantime, a good summary:


Donations tax deductible
to the full extent allowed by law.


Stop using their language; there is no such thing as transgender. To take inspiration from Dr. Seuss; if you are born with a d!ck, you are not a chick.

One day – and it may be sooner than later – this will instantly appear to be as insane as it really is ,

I do not use the word ‘insane’ with hyperbole, either.

    Yes, and I think that that particular end is also the point (of the over-the-top in-your-face theatrics.)

    These people ARE clinically insane.

    Don’t know if you’ve seen the story, but it came out that now ‘Elliot’ Page is saying that SHE realized she was transgender right after she had literally beaten her own face bloody and literally heard a voice telling her she was transgender, then started her transition mere weeks later with medical assistance.

    In a sane world SHE would have been given treatment for her obvious mental issues, not immediately given life-altering drugs and a schedule for her tits to be hacked off.

      BoboPhat in reply to Olinser. | June 10, 2023 at 8:33 pm

      On the other hand, a lot of actors crave attention, and would happily make-up stories to get it, or to get roles in more movies. A lot of mentally-ill people who aren’t even actors also seem to crave attention.

      Yes, they are mental cases. But they are the soldiers of the left, and completely disposable to the left.

      When the pedophile uprising is crushed and the pedophiles have to scurry back under the rocks and high offices they came out from under, the mentally ill, the neurotics and the narcissistic basketcases they used will be kicked by them to the side of the road.

      What will we then do with a generation of weirdos we can never trust around children?

      henrybowman in reply to Olinser. | June 11, 2023 at 2:24 am

      There’s a reason she made her entire career chops playing psychos, from Hard Candy to Umbrella Academy. You don’t cast “Elliott” in The Wizard of Oz. Well, I mean, not as Dorothy.

You’ll notice that women or girls pretending to be male is never an issue, because even those loons don’t want to be in the men’s restroom or locker rooms.

    I imagine you’re talking about somewhat ‘normal looking’ women. But if Rosie O’Donnell came into the men’s room; while I was in it, I’d do my business somewhere else.

    henrybowman in reply to Paddy M. | June 11, 2023 at 2:25 am

    You say that now, but 20(?) years ago it was a Big Thing when female sportscasters insisted on doing just that.

    artichoke in reply to Paddy M. | June 11, 2023 at 5:49 pm

    There are FTM transgenders, and I believe I’ve read of them using the men’s restroom. Just the stalls, I suppose.

So, as long as one “transgender” loses a race, the overwhelming damage to female competitors in all races is fine? We have seen this before in leftist reasoning. The exception bolsters the rule. If only reality was more potent an adversary to these people to remind them of it.

Cheating is cheating! IMO they know damn well they have an unfair advantage and are giving the finger to female competitors.

    JPL17 in reply to jb4. | June 10, 2023 at 11:10 pm

    Exactly. Which is why Judge Beth Robinson’s comment — that the transgender athletes “did nothing wrong” — defies common sense.

      It’s called “gaslighting”, aka the German Nazi’s “Big Lie” theory, and it’s Biden to a tee:

      “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
      -Adolph Hitler, attributed to Joseph Goebbels

      The original description of the big lie appeared in Mein Kampf. Adolf Hitler applied it to the behavior of Jews rather than as a tactic he advocated. Specifically, he accused Viennese Jews of trying to discredit the Germans’ activities during World War I. Hitler wrote of the Jews’ “unqualified capacity for falsehood” and “that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation…. From time immemorial, however, the Jews have known better than any others how falsehood and calumny can be exploited.”

      The OSS psychological profile of Hitler described his use of the big lie:

      His primary rules were: never allow the public to cool off; never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.
      Goebbels did describe the big lie in different language in an article he wrote in 1941, “Churchill’s Lie Factory,” but he was accusing the British of the ploy:

      The English follow the principle that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.
      Randall Bytwerk argues that neither Hitler nor Goebbels would admit to lying. Goebbels, “always maintained that propaganda had to be truthful. That doesn’t mean he didn’t lie, but it would be a pretty poor propagandist who publicly proclaimed that he was going to lie.”

        henrybowman in reply to | June 11, 2023 at 2:32 am

        “His primary rules were: never allow the public to cool off; never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.”

        Gee, all of that is exactly what the US left does today.
        Also a lot of it from Alinsky.

How novel: females objecting to the transgender invasion of female activities. Has the number of objecting females hit double digits yet?

    txvet2 in reply to Q. | June 10, 2023 at 10:24 pm

    If you count the number who have been exposed to male genitals in the women’s shower, it goes up quite a bit.

    artichoke in reply to Q. | June 11, 2023 at 5:54 pm

    Mostly it’s those specific females who would have won the event except for the transgender competitor’s presence, which is a very small proportion of all females. Crazy as I find all this transgender stuff, basing society-wide decisions on sports (not a very important part of society in my opinion), in particular lawsuits from that tiny fraction of females who might be athletic champions, seems strange. And yet in particular they are reasonable lawsuits.

      artichoke in reply to artichoke. | June 11, 2023 at 5:56 pm

      The really important issue is “gender affirming care” for non-adults i.e. child mutilation. It should never be allowed for these reasons on children. Once they’re adults, generally it’s their problem.

“After ruling that the high school track athlete plaintiffs’ counsel could not use the term “male” to describe the biological male athletes the plaintiffs had to compete against, the court dismissed the case, …”

The first part of this sentence, positing that plaintiffs’ counsel couldn’t refer to the tranny competitors as “male,” demonstrates the ideological, intellectual, legal, cultural and moral rot that has pervaded so much of the federal bench and its decision-making, thanks to Dumb-o-crat “judges’ ” so-called “jurisprudence,” which is merely run-of-the-mill, Dumb-o-crat activism.

henrybowman | June 11, 2023 at 2:30 am

“we don’t know how these races would have turned out” had the trans-identified athletes not participated.”

As far as I can see, that has to be the stupidest statement of the trial.
Take the results. Remove the places the transes won. There you go.

Yeah, there are second-order effects, like would the open spot have enabled an additional competitor to enter and perhaps win? Unlikely, since the best performers got the slots to begin with. It’s equally likely the dark horse might have been sick that day, so let’s not overreach just to give the time travel paradox a nurple.

RepublicanRJL | June 11, 2023 at 6:26 am

The Alanna Smith video was quite gripping to see a young, motivated individual already kicked down in standings.

Why? Simply because of a mentally deficient individual thinks he’s a girl.

Just like what the attorney said “this should not be the fight of 15 and 16 year olds. Where are the adults?”

Again the Left is good with words,….a transgender female is a touchy feely way to describe a man

Allowing biological males to compete and trounce biological females in female sports is the very definition of misogyny.

daniel_ream | June 12, 2023 at 3:43 am

The complaint “alleged a violation of Title IX[…]”

Karma’s a bitch, ladies. You’ve been taking scholarship funds and school budgets away from sports that people actually want to watch for decades because muh equality.