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Appellate Court Upholds Connecticut’s Policy Allowing Transgender Girls to Compete in Female High School Sports

As we previously reported in 2019, three female student athletes filed a complaint with the Office for Civil Rights concerning the Connecticut Interscholastic Athletic Conference’s (“CIAC”) policy that allows transgender students to compete in athletic events consistent with their gender identity. The student athletes alleged that CIAC’s policy violated Title IX and placed the biological female athletes at a competitive disadvantage, harming their chances of earning college scholarships. In 2020, the three female student athletes filed a complaint in the United States District Court for the District of Connecticut against CIAC and five separate Boards of Education. The complaint sought a declaration that the defendants “violated Title IX by failing to provide (1) competitive opportunities that effectively accommodate the abilities of girls; and (2) equal treatment, benefits, and opportunities for girls in in athletic competition.”

In 2021, the District Court dismissed the lawsuit as moot because the two transgender athletes had graduated high school and were no longer competing against the cisgender female athletes. Moreover, the plaintiffs could not identify any other female transgender athletes whose participation in athletic events would continue to cause them harm. The plaintiffs subsequently filed an appeal.

In its opinion in Soule v. Connecticut Association of Schools upholding the lower court’s decision, the Second Circuit held that the plaintiffs failed to prove CIAC’s policy “deprived them of a ‘chance to be champions’ ” as they claimed. Not only had the plaintiffs competed in competitions, including state-level track meets, but, on numerous occasions, they placed higher than the transgender athletes. Further, the Court held that the plaintiffs’ argument that their athletic record could impact their future employment because of the high value placed on athletic experiences was speculative and did not prove actual harm. Importantly, the Court relied on past circuit court decisions and the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, which held that it is unlawful to discriminate against individuals based on their gender identity or sexual orientation in the workplace under Title VII. Specifically, the Second Circuit ruled that “Title IX includes language identical to Title VII, broadly prohibiting discrimination ‘on the basis of sex.’ Thus, it cannot be said that the Policy—which prohibits discrimination based on a student’s transgender status by allowing all students to participate on gender specific teams consistent with their gender identity—‘falls within the scope of Title IX’s proscriptions.’”

The Second Circuit’s decision allowing transgender students to participate in athletic activities consistent with their gender identity aligns with the U.S. Court of Appeals for the Seventh Circuit’s (which has jurisdiction over Illinois) 2017 decision in Whitaker v. Kenosha Unified School District, allowing transgender students to access and use school facilities based on their gender identity pursuant to Title IX and the Equal Protection Clause. However, despite the Second Circuit’s decision to extend legal protections to transgender students in athletic competitions, many states have pushed for wider restrictions on transgender students, enacting new legislation to bar transgender athletes from participating in athletic competitions based on their gender identity. Far from settling any legal questions regarding transgender students’ rights to access facilities and athletic competitions based on their gender identity, this Second Circuit decision (and contrary decisions from other circuit courts) sets up a showdown across the circuit courts that is ripe for review by the U.S. Supreme Court.

For questions about this case or transgender-student issues more generally, please contact Michelle Todd in our Students/Special Ed practice group.

Source: Soule v. Connecticut Association of Schools, No. 21-1365-cv (2nd Cir. Dec. 16, 2022)