Preview of Appellate Argument in Connecticut Transgender In Women’s Sports Case

Preview of Appellate Argument in Connecticut Transgender In Women’s Sports Case

Since early 2019 we have been covering the case of Selina Soule, Chelsea Mitchell, and other Connecticut high school track athletes victimized by having to compete against biological male athletes who transition to female: Connecticut: Transgender High School Sprinters Claim Top Spots In Girls Indoor Track Championship.

As the Washington Times reported at the time:

Andraya Yearwood hears the comments, usually from adults and usually not to her face.

She shouldn’t be running, they say, not against girls.

Yearwood, a 17-year-old junior at Cromwell High School, is one of two transgender high school sprinters in Connecticut, transitioning to female.

She recently finished second in the 55-meter dash at the state open indoor track championships. The winner, Terry Miller of Bloomfield High, is also transgender and set a girls state indoor record of 6.95 seconds. Yearwood finished in 7.01 seconds and the third-place competitor, who is not transgender, finished in 7.23 seconds.

Miller and Yearwood also topped the 100-meter state championships last year, and Miller won the 300 this season.

Critics say their gender identity amounts to an unfair advantage, expressing a familiar argument in a complex debate for transgender athletes as they break barriers across sports around the world from high school to the pros.

The Federal 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.”

CIAC defended its policy in a media statement, saying that “we believe that the current CIAC policy is appropriate under both Connecticut law and Title IX.”

On August 7, 2019, OCR sent counsel for Selina Soule and her co-complainants notice that they had opened an investigation into “[w]hether the CIAC and the District have denied equal athletic benefits and opportunities to girls,” among other issues.  The OCR letter also noted that “you may have a right to file a private suit in federal court whether or not OCR finds a violation.”

The Federal Court Lawsuit

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.”

Trouble came early in the lawsuit, as Judge Chatigny telegraphed where he stood on the case when he ruled that counsel for Soule, Mitchell, and Smith could not refer to the biological males who had competed against them as males, as we reported: Connecticut: Judge Rules Transgender Sprinters Competing Against Girls Cannot Be Called “Males” In Court . . . Or Else:

The filing against the Connecticut Interscholastic Athletic Conference (CIAC) has made it into the courts, and District Court Judge Robert Chatigny ruled that the attorneys for the biological girls cannot refer to the transgender sprinters as males and must instead say “transgender females.”

The attorneys for the girl athletes are requesting that the judge recuse himself over this stipulation because, in part, it appears he has “destroyed the appearance of impartiality in this proceeding.”

The plaintiffs’ motion for recusal, filed May 8, 2020, can be reviewed here.

As PJ Media reported at the time:

Three female high school track athletes are suing the Connecticut Interscholastic Athletic Conference (CIAC) over unfair rules that allow biological males who identify as female to compete in women’s sports. Last month, a district court judge barred the girls’ lawyers from referring to the biological males as “males,” insisting that the lawyers call them “transgender females.” He threatened to retaliate if they refuse to do so. This effective gag order may undermine their case, and it certainly shows bias against their underlying argument. Therefore, the lawyers moved for the judge to recuse himself.

But of course Judge Chatigny did not recuse himself, stating in June 2020 that he was not “partial or biased” about the case, and that calling the biological male athletes “male” was problematic because “calling transgender girls ‘males’ can cause significant mental and emotional distress.”

In addition, in April 2021, Judge Chatigny 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 reported: Judge Dismisses Lawsuit to Block Transgender Females From Competing in Female Sports.

From the Hartford Courant report at the time:

“I conclude that the plaintiffs’ challenge to the CIAC policy is not justiciable at this time and their claims for monetary relief are barred and dismiss the action on this basis without addressing the other grounds raised in the joint motion,’ Chatigny wrote in a ruling released Sunday.

Chatigny stated that because the two transgender athletes, Terry Miller of Bloomfield and Andraya Yearwood of Cromwell, have graduated and the plaintiffs could no longer identify any other transgender female athletes, there was no further dispute to resolve.

—
“I conclude that the request to enjoin enforcement of the CIAC policy has become moot due to the graduation of Yearwood and Miller, whose participation in girls’ track provided the impetus for this action,” he wrote. “There is no indication that [two of the plaintiffs Alanna] Smith and [Ashley] Nicoletti will encounter competition by a transgender student in a CIAC-sponsored event next season.”

“Defendants’ counsel have represented that they know of no transgender student who will be participating in girls’ track at that time. It is still theoretically possible that a transgender student could attempt to do so. Even then, however, a legally cognizable injury to these plaintiffs would depend on a transgender student running in the same events and achieving substantially similar times. Such ‘speculative contingencies’ are insufficient to satisfy the case.”

As we noted at the time, any appeal by the plaintiffs might get a boost from a March 2021 U.S. Supreme Court opinion, holding that a student claiming only nominal damages still has standing, even after they graduate. From the Supreme Court Opinion:

At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings. To demonstrate standing, the plaintiff must not only establish an injury that is fairly traceable to the challenged conduct but must also seek a remedy that redresses that injury. And if in the course of litigation a court finds that it can no longer provide a plaintiff with any effectual relief, the case generally is moot. This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.

The Federal Court Appeal, Part I

In May, 2021, the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit, and despite the recent Supreme Court opinion apparently helping their case, the Second Circuit ruled against the plaintiffs, and affirmed Judge Chatigny’s dismissal Order.

From Professor Jacobson’s comprehensive post on the Second Circuit’s upholding the dismissal of the plaintiffs’ case: 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….

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.”…

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.

The Second Circuit also issued a “Judgment” the same day as its dismissal affirmance order, stating that “IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court’s judgment dismissing the claim is AFFIRMED.”

As a side note, the three judges who decided the plaintiffs’ appeal included Senior Circuit Judge Denny Chin, appointed to the Second Circuit by Barack Obama and confirmed in April 2010, Senior Circuit Judge Susan L. Carney, appointed by Barack Obama and seated on the bench on June 2011, and Circuit Judge Beth Robinson, appointed to the Second Circuit by Joe Biden in November 2021.

The Federal Court Appeal, Part II

So, the plaintiffs’ case looked all but sunk, with the only options left to the plaintiffs being:

1. Filing a motion for reconsideration – a sure loser without new law or undisclosed facts coming to light,
2. Filing a motion for rehearing en banc, meaning the case would be heard by the entire Second Circuit, i.e. every active circuit judge, not just a three-judge panel – extremely rare and only granted in the most unusual circumstances or important cases, or
3. Filing a petition for certiorari (review) in the U.S. Supreme Court – also extremely rare given that the Supreme Court only hears about one percent of the cases that are petitioned for review.

So it was a complete surprise on February 13, 2023, when the Second Circuit issued one Order sua sponte (on its own, without motion by any party) reinstating the plaintiffs’ appeal, and another ordering the case to be reheard en banc: “A poll having been conducted and a majority of the active judges of the Court having voted in favor of rehearing this appeal en banc, IT IS HEREBY ORDERED that this appeal be heard en banc…Scheduling  information will be forthcoming.”

How that happened we will likely never know…it did not occur as it normally does through motion by the party that lost the appeal.  As the Federal Rules of Appellate Procedure provide:

An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance.

Fed. Rule App. Procedure 35(a).

The 2nd Circuit Court of Appeals has agreed sua sponte to rehear Soule v. CT— a case brought by 4 female athletes against Connecticut for allowing male-born athletes to compete against them. The 2d Cir dismissed this 2 months ago for lack of standing. Very rare to see this occur. pic.twitter.com/FqjfHQ94MK

— Paolo (@2aolo) February 17, 2023

On March 23, 2023, the plaintiff-appellants filed their en banc appeal brief, and were supported by 11 amicus (or friend of the court) briefs, including one by a number of female Olympic rowers, and another by 23 states, including Florida, Texas, and Missouri.

In their appeal brief, Soule et al. argue, among other things, that they have suffered a justiciable injury-in-fact, a requirement for standing:

Plaintiffs plausibly alleged that Defendants’ promulgation and enforcement of the CIAC policy caused an injury in fact. Depriving Plaintiffs of equal athletic benefits and opportunities, as well as effective accommodation of their abilities, violated Title IX and harmed them by causing Plaintiffs emotional and psychological distress; blocking their advancement to regional meets; stripping them of medals, championship titles, and records; and depriving them of public recognition for their achievements. Those injuries are concrete, not abstract, and particular to each named Plaintiff, not generalized.

They are also actual or imminent. Violation of Plaintiffs’ Title IX rights and the resulting emotional distress; loss of medals, titles, and advancement; degrading their official athletic records; and dampening of college scouts’ and scholarship committees’ interest are actual, completed harms. Because the injuries resulting from those harms are ongoing—particularly when it comes to the accuracy of Plaintiffs’ official athletic records and their resulting marketability—they are not only actual but imminent too. Other Courts of Appeals’ rulings in prior athletic-records cases and academic-or-disciplinary record cases prove Plaintiffs’ ongoing injuries and right to seek prospective relief.

Plaintiff-appellants also argue that their injuries are redressable by judicial action, another component of standing:

Plaintiffs have also plausibly alleged that their injuries are at least partially redressable by a judicial decision. Compensatory or nominal damages will likely redress their completed harms, and prospective relief will likely remedy their ongoing injuries by correcting their official athletic records, medals, and titles. CIAC’s own policies demonstrate that correcting students’ athletic records after the fact is both possible and necessary to address the effect of unfair competition. And the highest levels of competitive sport show that society highly values corrected athletic medals and records, no matter how long it takes to get them right.

Oral argument is scheduled for this Tuesday, June 6th, 2023, at 2 p.m. at the Thurgood Marshall Federal Courthouse in Manhattan.

Here’s hoping that the Court will agree that the plaintiffs, despite now having all graduated from high school, still have standing to pursue their claims. If that happens, the court should reverse the district court’s dismissal of the case and send it back down for a hearing on the merits of plaintiffs’ arguments.

We will keep you updated on the progress of the case as it develops.

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