Appeals court backs trans-inclusive sports in Connecticut schools

MANHATTAN (CN) — Connecticut schools need not scrub the records of transgender track runners’ race times, the Second Circuit ruled Friday, affirming the dismissal of a lawsuit against inclusive athletics policies. 

Four cisgender students brought the Title IX lawsuit in 2020, claiming that Connecticut Interscholastic Athletic Conference took away their “chance to be champions” by including trans students in races. As the case proceeded, however, the trans athletes graduated, and a federal judge dismissed the suit as moot. 

All of the plaintiffs are out of high school by now as well, but the runners say their permanent records continue to follow them and may affect opportunities including employment — a claim the federal courts agreed is speculative. 

The claims fail to establish injury and redressability, a panel of appellate judges found. 

“All four plaintiffs regularly competed at state track championships as high school athletes, where plaintiffs had the opportunity to compete for state titles in different events,” the 29-page order states.

One of the plaintiffs, Chelsea Mitchell, beat trans athletes Andraya Yearwood and Terry Miller in some races and lost to them in others — including four state championships. The remaining plaintiffs, Selina Soule, Alanna Smith and Ashley Nicoletti, each cited one instance where they say they missed out on opportunities because they were competing against trans athletes. 

“Plaintiffs simply have not been deprived of a ‘chance to be champions,’” U.S. Circuit Judge Denny Chin wrote for a three-judge panel.

Nor would changing the records recreate that “chance,” the Obama appointee wrote: There is not a proper legal framework to change the records of athletes who played by the rules. 

“Indeed, the races were run in conformity with the rules in effect at the time; times were recorded; medals for gold, silver and bronze were in fact awarded to athletes who finished first, second, and third; and the records accurately reflect those results,” the opinion states. 

U.S. Circuit Judges Susan Carney and Beth Robinson, appointed by Obama and Biden, respectively, concurred.

The ruling may have an effect on similar litigation in the future, said Carl Charles, a senior attorney at Lambda Legal. It gets to more than just the question of standing to bring such a suit.

“I think it deals with, actually, the merits of cisgender people complaining that existing in spaces with trans people is specifically an injury to them,” Charles told Courthouse News.  

The appellate judges agreed with the lower court that the plaintiff runners were not entitled to more than “psychic satisfaction,” which isn’t on its own a remedy under Article III of the U.S. Constitution.

Charles predicts the ruling could change up challenges to inclusive rules. 

“I think it will definitely have an impact on some of our most stringently anti-LGBT opponents,” Charles said. “I think it’s a blow to their game plan, and I’m happy to see it, frankly.” 

Representing the plaintiffs is the Alliance Defending Freedom, a Christian legal advocacy organization with a decades-long track record of fighting against gay rights, including supporting criminalizing homosexuality in the 2003 Supreme Court case Lawrence v. Texas. 

The organization said it is evaluating its legal options, including an appeal. 

“Our clients — like all female athletes—deserve access to fair competition,” Alliance Defending Freedom attorney Christiana Kiefer said in an email. “Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics, and ADF remains committed to protecting the future of women’s sports.”

Kiefer's statement cites a June 2022 poll of around 1,500 people, conducted by the University of Maryland and Washington Post, which found that 55% of Americans oppose allowing trans women and girls to compete in women’s high school sports. Thirty percent of respondents agreed with trans-inclusive high school athletics policies, and 15% had no opinion.  

Kiefer also noted that 18 states have laws that ban trans athletes from playing against cis students of the same gender, which Kiefer says “protect women and girls” from unfair competition. 

Earlier this year in Utah, a state judge blocked a law that would banned transgender youth from participating in girls' athletics. 

Three teenage plaintiffs sued two Utah school districts and their superintendents, claiming the law would cause irreparable harm. Third Judicial District Court Judge Keith Kelly granted their request for a preliminary injunction. 

“The ban singles out transgender girls and categorically bars them from competing on girls’ sports teams," Kelly wrote in a 16-page order. “At the same time, other girls are free to compete. This is plainly unfavorable treatment." 

Meanwhile the Ninth Circuit is weighing a lawsuit in Idaho — the first state to impose such a ban — filed by a trans woman who was not allowed to try out for the Boise State University women’s cross country team. 

Although the Connecticut case comes down to standing and mootness, it posed questions about how courts handle gender-related language and claims of the scientific basis for gender. 

In the lower court, the plaintiffs moved unsuccessfully to disqualify the district judge based on his request that they use language respecting the trans students’ gender identity. They cited a January 2020 decision in U.S. v. Varner, in which a Fifth Circuit panel denied a trans detainee’s motion to be addressed with her preferred pronouns. 

U.S. District Judge Robert N. Chatigny rejected the recusal motion and doubled down on his refusal to misgender trans women — asking the plaintiffs to refer to the athletes as “transgender females” instead of “males,” a term that he called “needlessly provocative, and inconsistent with norms of civility in judicial proceedings, which I want to be careful to maintain.” 

“I stated that referring to these transgender youth as 'transgender females' would be consistent with 'science, common practice, and perhaps human decency,'" Chatigny wrote. He clarified that he was referring, not to the question of a competitive advantage, but to “science that tells us calling transgender girls ‘males’ can cause significant mental and emotional distress.” 

Chatigny wrote that the plaintiffs would still be able to use terms like “biologically male” and “male bodies,” which appeared in their appellate briefs. 

Charles said Chatigny’s requests weren't unusual, as judges tend to expect a level of decorum from the attorneys in their courts.

​​“This happens every day in courtrooms across the country, both criminal and civil, in part because we’ve learned more as lawyers,” Charles said. “We’ve learned more about what it means to be respectful of parties — all parties.” 

That respect extends, too, in who gets to play. 

“Making hairsplitting decisions about who can and can’t participate in such a fundamental community activity like sports in our education system is wrong,” Charles said, “and that’s why our baseline position is inclusion for all students.”

Follow @NinaPullano

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