MANHATTAN (CN) — Former high school runners backed by a religious legal group asked a federal appeals court Thursday to revive their fight against inclusive policies for transgender girls that they say cost them state championships.
The four students brought the Title IX lawsuit in 2020, arguing that the Connecticut Interscholastic Athletic Conference's policies took away their fair shot at winning races. As the case proceeded, however, the trans athletes graduated, and U.S. District Judge Robert N. Chatigny dismissed the suit as moot.
All of the plaintiffs are out of high school by now as well — and the change of White House leadership means that they no longer have the Department of Justice's support. Insisting nevertheless that there is still a live controversy, the runners say their permanent records continue to follow them.
“The primary purpose of athletics is to be the best,” attorney Roger Brooks argued Thursday in front of a Second Circuit panel. “We say, ‘That’s one for the record books.’ We say, ‘He has the heart of a champion.’”
Brooks wrote in his brief that the current scores could harm the plaintiffs’ college and future employment prospects.
“The one thing we all agree on is that the public record matters,” Brooks said. “The thing that’s in question is who’s entitled to it.”
The Connecticut athletics body meanwhile asked the court to affirm. He said that the plaintiffs don’t have standing to change high school athletic records, and that their claimed injuries are speculative.
U.S. Circuit Judge Susan Carney pressed attorney Peter Murphy on that point, questioning why, on the merits, performing worse in a race shouldn’t be counted as a “real injury.”
“Why isn't the denial of a single championship enough?” asked Carney, an Obama appointee.
Erasing trans students’ athletic records may offer their cis competitiors “psychic satisfaction,” Murphy replied, but that doesn’t give them standing for redress under Article III of the U.S. Constitution.
“They might internally believe they won the race, but there’s no mechanism to declare them the winner,” said Murphy, of the firm Shipman & Goodwin in Hartford, Connecticut.
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.
Judge Chatigny, a Clinton appointee, agreed that four additional high school track wins could boost Mitchell’s resume.
“But it seems inevitable that, before making an offer to Mitchell, a prospective employer impressed by her record would learn that she did not actually finish first in the four races,” Chatigny wrote. “In other words, even with the requested changes, Mitchell’s position with regard to her employment prospects would remain essentially the same.”
Murphy reiterated that point to the three-judge appellate panel.
“There’s no procedure available to name her the winner of that race,” Murphy said. “She did not cross the finish line first.”
American Civil Liberties Union attorney Joshua Block represents Yearwood and Miller as intervenors. He took the argument a step further: “The records are already correct.”
“Plaintiffs’ complaint is based on the false legal premise that Title IX creates a definition of sex that … requires schools to treat transgender girls as if they are cisgender boys,” Block said. “The complaint is filled with hypothetical [descriptions] of a dystopia where cisgender girls disappear from the podium.”
Brooks closed his arguments with a nod to that hypothetical future.
“These young women, meet after meet, saw that in Connecticut, those who were born female didn’t have an equal chance,” he said Thursday. “And perhaps even more significantly, their little sisters standing on the sidelines saw meet after meet that [those who were born female] didn’t have an equal chance.”
Brooks is an attorney for Attorneys from Alliance Defending Freedom, a Christian legal advocacy organization with a decades-long track record of fighting against gay rights.
The group filed an amicus brief supporting the criminalization of homosexuality in the 2003 Supreme Court case Lawrence v. Texas, and intervened in 2015 to defend European laws that make sterilization a requirement for trans people to change the gender on their birth certificate, writing that “equal dignity does not mean that every sexual orientation warrants equal respect.”
In an interview with Courthouse News, attorney Christiana Kiefer repeatedly referred to the trans athletes in the Connecticut lawsuit as “males.” Judge Chatigny had called such posturing “needlessly provocative” in a footnote in his ruling.
Asked why she was using the term to refer to people who identify as girls or women, Kiefer said, “I’m just clarifying that I'm not talking about their identity at all. I’m talking about their physical bodies.”
Kiefer said she was encouraged by the hearing and judges’ questions.
“They seem to recognize that records matter to athletes,” Kiefer said. “It’s necessary that they reflect what was rightly accomplished and achieved.”
Murphy and Brooks did not respond to requests for comment.
Judge Carney was joined on the panel by U.S. Circuit Judges Denny Chin and Beth Robinson, appointed by Obama and Biden, respectively.
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