We have been covering the case of four female high school athletes in Connecticut who got jacked out of numerous track titles by biological boys for over five years now, and the case certainly has had its ups and downs:
2021: Judge Dismisses Lawsuit to Block Transgender Females From Competing in Female Sports
As you can see, the case looked dead in the water in 2022 when the federal Second Circuit court of appeals affirmed the Connecticut federal trial-level court’s conclusion that the four Plaintiffs in the case had their case “mooted out” when they all graduated from high school. As Professor Jacobson said at the time:
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…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.
But then, the miraculous happened:
So, the plaintiffs’ case looked all but sunk, but in a shocking, surprise move, in February of this year [2023], 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.
And the Second Circuit, with all active circuit judges in attendance, heard oral argument, Appeals Court Hears Arguments [En Banc] Whether Connecticut Female Athletes Can Sue To Stop ‘Transgender’ Participation, and then delivered a stunning rebuke to the fedeal trial-level court, as we reported in last December: Huge Win for Women’s Sports – Appeals Court Says Female High School Athletes Can Sue Over Transgender Athlete Participation.
And now, even more amazingly still, that same trial judge, the one who said “transgender girls” could not be called boys in his courtroom, and who previously ruled that the case was moot, has ruled that substantively, there is enough of a claim “on the merits” to make it necessary for him to allow the case to proceed through discovery and trial. This is a huge win.
You can review the Order Denying the Defendants’ Motion to Dismiss here, and at the bottom of this post, but are some key parts. Note that, interestingly, Plaintiffs claims were held plausible because it appears that the schools involved treated the female athletes poorly because they were girls:
For reasons discussed below, I conclude that the allegations of the Amended Complaint, accepted as true and construed favorably to the plaintiffs, provide the basis for a disparate-treatment claim within the scope of Title IX’s implied private right of action; the plaintiffs’ home schools are potentially liable for subjecting the plaintiffs to discrimination under their athletic programs in violation of Title IX…Accordingly, the motions to dismiss are denied…the issue here is whether the allegations support a plausible inference that the defendants responded to the plaintiffs’ complaints the way they did “because of” the plaintiffs’ sex. In other words, but-for the plaintiffs’ status as females, would the defendants have treated them more favorably? Only minimal support for such an inference is required at this stage…I conclude that the allegations provide at least minimal support for a plausible inference that the defendants would have responded more favorably if the complaining students had been male. This conclusion is supported by the manner in which the defendants allegedly rebuffed the plaintiffs’ complaints of unfair competition and attempted to stifle further complaints. As a result of the defendants’ conduct, the plaintiffs reasonably perceived that the defendants regarded girls’ sports as less worthy of consideration and support than boys’ sports. In light of the history of discrimination against girls’ high school sports in Connecticut, a reasonable official mindful of Title IX would take the plaintiffs’ complaints seriously. Yet the defendants apparently did not. One possible explanation is that the plaintiffs’ perception was accurate – the defendants did nothing to protect the plaintiffs’ interest in fair competition because they regarded girls’ sports as relatively unimportant compared to boys’ sports, an attitude antithetical to the Title IX’s nondiscrimination mandate. Crediting the plaintiffs’ allegations, it is plausible the defendants had such a mindset and acted accordingly.[emphasis added]
Wow. And, a check of the docket in the case shows that there have been no attempts to appeal this ruling, and a scheduling conference is set for December 3, 2024 to determine the schedule for discovery and the rest of the case.
Discovery is often very revealing, and my guess is the schools involved aren’t too happy about it – maybe even sweating it out a bit.
Buckle up!
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