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 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:
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.
The female athletes are even going to be on TV!
The following X post sums up how I feel about this case:
We will keep you posted as the case returns to the trial level federal court for proceedings “on the merits.”
CLICK HERE FOR FULL VERSION OF THIS STORY