Huge Win for Women’s Sports – Appeals Court Says Female High School Athletes Can Sue Over Transgender Athlete Participation
“On the issue of whether Plaintiffs have plausibly stated an injury in fact, all members of the en banc Court agree unanimously that they have.”
We have been covering the winding road of several Connecticut female high school athletes deprived of significant accomplishments by several male high school athletes for almost five years now.
First, 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 identity.”
Next, in February 2020, the girls commenced federal court litigation, filing 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.
Next, in April 2021, Judge Chatigny dismissed the case on standing grounds, not on the merits of CIAC’s transgender policy, “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.
In May 2021, the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit, but in December 2022, the Second Circuit ruled against the plaintiffs, and affirmed Judge Chatigny’s dismissal Order.
Professor Jacobson comprehensively covered 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.
So, the plaintiffs’ case looked all but sunk, but in a shocking, surprise move, in February of this year, the Second Circuit issued an Order sua sponte (on its own, without motion by any party) reinstating the plaintiffs’ appeal, and ordering the case to be reheard en banc, or by every active member of the Second Circuit, sitting together. How that happened, we will never know, but it is an extremely rare occurrence:
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
The Second Circuit heard oral argument in the case in June of this year, which I covered in detail: Appeals Court Hears Arguments Whether Connecticut Female Athletes Can Sue To Stop ‘Transgender’ Participation:
After having listened intently to the oral argument, which you can review here, I would have to say that [the Plaintiffs/female high school athletes’ attorney] acquitted himself well, with several interesting questions coming his way from a very engaged, “hot bench.”
***
My review [also] shows that [Defendants/transgender athletes’ attorney] 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 [his] 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, [he] answered that that was “different” and that such a plaintiff “potentially” might have standing, without offering much explanation.
I was pretty confident after listening to the oral argument that the Plaintiff girls might have a chance to have the standing ruling reversed and, therefore, might get a chance actually to prove their case at trial:
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…We’ll see.
Well, I was right!!
The Second Circuit, ruling en banc, has determined that the female athletes do have standing to pursue their case at trial:
2nd Circuit, sitting en banc, finds that non-transgender female high school athletes have standing to sue Connecticut for Title IX sex discrimination over the state's inclusion of transgender female athletes in track and field competitions. https://t.co/T8UHRp3bZR pic.twitter.com/NlTwokJhKe
— Mike Sacks (@MikeSacksEsq) December 15, 2023
You can review the Second Circuit opinion here:
The opinion is stunning in one key aspect: Although there is a dissenting opinion (in part), the summary of the opinion importantly points out that “[o]n the issue of whether Plaintiffs have plausibly stated an injury in fact, all members of the en banc Court agree unanimously that they have.” That is critical because Judge Chatigny (the trial level judge) had ruled that they could not have been injured because the girls had already graduated from high school. That ruling has now been completely rebuked by every active judge on the Second Circuit.
Selina, Chelsea, Alanna, and Ashely have been fighting for #fairness in women's sports for more than 4yrs.
This morning, the 2nd Cir agreed that these brave young women have shown they were harmed by competing against males & can move forward with their #TitleIX lawsuit! pic.twitter.com/1tBGRuYnAB
— Christiana (Holcomb) Kiefer (@ChristianaADF) December 15, 2023
The female athletes are even going to be on TV!
Tune in to Fox & Friends tomorrow morning at 8:30am ET to talk about today’s decision!! @FoxNews pic.twitter.com/4X3cc9HHpN
— Selina Soule (@_selinasoule) December 15, 2023
The following X post sums up how I feel about this case:
Congrats to Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti – 4 female athletes who sued @ciacsports when they were in HS over the conference's policy allowing boys to compete in girls' sports. Big win today in 2nd Cir. Case: Soule v. CIAC.#SaveWomensSports
— Kara Dansky (@KDansky) December 15, 2023
We will keep you posted as the case returns to the trial level federal court for proceedings “on the merits.”
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Comments
Superb!! We have to keep pounding these cases to put a spotlight on the inequalities of putting males vs. females in any active sport in which the obvious biological differences in the two affect the results.
Title IX was not meant to address psychology, only biology. The very essence of sex discrimination relies on the demonstrable differences between the real, biological sexes.
I live in California where we have initiatives so I am thinking that we should have an initiative that uses blood tests to determine a person’s sex. It would stop men who preyed to be women from competing in women’s sports.
It is shocking for the Second Circuit to have this inexplicable moment of lucidity and fidelity. It’s very out of character. Perhaps they want to later opine on the merits so they can deliver their full-on woke recital of the leftists’ beliefs.
Great news, will this allow lawsuits against those male scum bags to recover all the money they made?
No, the the organizations
this is truly outstanding news.
take a middle of the road athlete
make him id as a girl and wow
“she”is a champion …
like have said. girls compete against
girls, boys against boys
and trans against trans or with their biological sex.
The solution is simpler than that. Just use genetics to determine what team people compete in. Males have XY and females have XX.
Hard to believe the legal industry has brought us to this. Ever bloating itself, can we survive it? I warned my dumb friends who good naturedly but foolishly supported gay marriage that they were walking society into a trap. You don’t casually overturn 20 thousand years of custom without greenlighting and empowering demons from a Pandora’s Box. And here we are. What do they say the road to catastrophe is paved with?
Huh?
Come on, now.
“female”.
I hope they put it that way just to be clear for those who failed high school biology, or a toddler looksee. But yeah, “female” should have done it and might have even brought the point home further for those with an analytical process..
Attorneys for Conn. High School Runners Ask Judge to Recuse after He Forbids Them from Describing Trans Athletes as ‘Male’
https://www.nationalreview.com/news/attorneys-for-connecticut-high-school-runners-ask-judge-to-recuse-after-he-forbids-them-from-describing-trans-athletes-as-male/
That judge is a perverted lunatic. He should be thrown off the bench and ejected from civil society. And not only is he stupid and deranged but he’s a liar, too:
0 for 3.
I especially love this “common practice” thing he made up.
What a complete POS. This judge is no American. He might not even qualify as human … by “common practice”, certainly.
when compare to Engoron and Chutkan there seems to be an epidemic of either stupid or corrupt
Interesting case, esp from a law school point of view. This is the sort of decision that should be studied there. The trial court and the appeals court panel put the cart before the horse – they used the merits to determine whether there was standing, but with an adequately plead complaint, standing comes first.
We leave to0 much to lawyers who enjoy making $$ punching holes in society and then playing off both ends. It’s beyond lunacy to presume that their opinion of what constitutes a man or a woman is certified–superior in some unimaginable way– and consequently trumps all of us as well as everything from biology to basic instinct. Law should be conservative, not subject to the whim of a few dotards We have now achieved a great example of how legal logic–eschewing reality– can lead to immense social harm and disaster.
Standing…so a lower court can take the appeal, wait until the girls bringing the suit graduate and then say “Sorry”. This results in the case never being decided and as an aside, let’s the Judge off a difficult ruling.
Um, no. We’ve already been there and done that. The girls have already graduated, which is why it was up at the appeals court in the first place. And the 2nd circuit has now decided unanimously that they have standing anyway. So the trial judge can’t repeat that error.
Um…yeah. I was referring not only to the original ruling that got overturned but to all the cases before the Judiciary dismissed for “standing”.
The appeals court has explicitly ruled, unanimously, that the plaintiffs do not lose their standing by graduating. Therefore what you wrote — “a lower court can take the appeal, wait until the girls bringing the suit graduate and then say ‘Sorry'”, cannot happen again.
Can you just stop correcting people for a minute? You don’t have to prove how smart you are to the entire world on every thread or is your ego that fragile?
Don’t you care about the truth?
In all my years on God’s earth, I never thought I’d see the day where biological birth sex would be questioned.
It truly represents the madness of today’s society.
Trust the legal industry to promote such an idiotic question–same way 4 life sentences served consecutively becomes 30 years etc. Yet mokes still believe it exists for ‘justice’. Quite the opposite, really. A large part of its objective is to create great mischief for large profit.
This is good news, but it points out what became very obvious during Covid. Our three-branch system of government, further kept in check by a free press, no longer functions as intended. The judicial branch is way too slow and completely outmatched when it’s up against the combined forces of a huge and unaccountable administrative state, the executive branch, and reinforced by a corrupt media that’s been fully captured by the administrative state as well. The legislative branch allowed the administrative state to happen and is afraid to take it on, even if they wanted to. And the media keeps citizens in the dark about what’s happening, which is easy enough to do because the government controls education from K-PhD, and also controls The Science™ via its usurpation of research funding. And even to the little extent the judiciary can push back on this, over time this will decline as this woke blob eventually completes its takeover of the judiciary. We really have maybe 4 solid SCOTUS justices standing in the way, they’re aging out and the remaining “conservative” justices are too squishy to hold the line.
My take is different…the judicial branch is the most corrupt …in a very competitive race… with absolutely no thought or care about the law or constitution in any of its rulings. And it’s only going to get much much worse based on the law schools being the worst of academia and the students they enroll being the most extreme of the America hating youth
You may very well be right. An attorney once told me courts resolve conflicts, they aren’t seeking “Justice” per se though they may occasionally stumble across it. Certainly this is true in the day to day world of routine litigation and criminal proceedings. If they can get the parties to split the difference, they get it off the docket. It should be different at the higher levels, esp SCOTUS, where constitutional issues should be considered. But I’d say the chief Justice is a split the difference type. And yeah, it’s going to get worse based on what law schools are turning out.
I consistently refer to humiliation. In my day in college any man that would compete against women would be humiliated.
College women have a great deal of influence over college men. Why do the female athletes not appeal to the men to pound these parasites into the ground?
I would prefer that the administration take their head out of their a$$, but if they are too cowardly, encourage the offensive line of the football team pound these punks into the ground,
Erronius
It’s crazy that women (biological, real women) have to litigate for the right to litigate to protect their rights, their privacy, and, indeed, their existence, from invasion by the vile and obnoxious tranny narcissists, misogynists and totalitarians. This is how far the U.S. has fallen, morally and rationally speaking.