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 policyA 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:
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