MANHATTAN (CN) — Four female high school track stars who claim they shouldn’t have had to compete against transgender girls got a second chance to argue before the Second Circuit. Victory, at least as of Tuesday, remains elusive, but the court seemed much more willing this time to at least let them onto the playing field.
The en banc hearing of the federal appeals court comes after a three-judge panel dismissed their suit back in December. Affirming a lower court ruling, the Second Circuit ruled that the case was moot because all of the parties had graduated and there was no legal mechanism to change the state’s official athletic records. But given the national controversy over the issue, the court voted to rehear the case before a full panel of 15 judges.
Chelsea Mitchell led the complaint and with three other girls against the Connecticut Interscholastic Athletic Conference. Mitchell claimed that she lost out on four state titles because she had to compete against two biological males, and asked for the records to be changed to give her the victories because it would improve her employment prospects.
When one of her competitors, Terry Miller, ran with the boy's team, she never placed better than 325th in a track event. After coming out as trans, however, Miller won first prize in a girl's 100-meter event by a large margin.
At the crux of the debate is Title IX, a 1972 federal law that prohibits sex discrimination in school sports. Both sides in the case argue that the other point of view amounts to sex discrimination. But the court had no interest in discussing Title IX; it focused instead on whether Mitchell and the other girls had alleged an injury that a court could fix and thus should have been allowed through the courtroom door in the first place.
“I’d be happy to answer any questions on the merits but that’s obviously not what the panel is interested in today,” commented ACLU attorney Joshua Block, who represented the two trans students, as he observed where the argument was headed.
The athletic conference’s lawyer, Peter Murphy of Shipman & Goodwin in Hartford, Connecticut, told the panel that the plaintiffs hadn’t suffered any injury because “high school athletic records are unlikely to affect people’s future life prospects.” This remark brought immediate pushback, however, from several of the judges, and Murphy spent his entire time at the lectern on the defensive.
One judge asked whether, if the athletic conference changed the records, the transgender students would have standing to complain.
“No,” Murphy said.
But the transgender students intervened in the case and were represented by Block at oral argument, the judge pointed out.
“I hadn’t thought about that,” Murphy admitted.
What if a student was suspected of doping and the state changed its records, another judge asked. Would the student accused of taking drugs have standing?
“Potentially,” Murphy said.
“But you said just the opposite a minute ago!” the judge responded.
“Maybe I misspoke,” Murphy said.
Murphy then tried to claim that the plaintiffs weren’t deprived of a chance to win because they ran in the races against the biological males; they just didn’t always finish first.
“Are you saying that if a school had a unisex team, that wouldn’t violate Title IX?” one judge asked rather incredulously.
“I don’t know. That’s a different situation,” Murphy said.
“Why is it different?” the judge demanded.
Another judge asked whether, if the school disqualified all Black students and gave first prize to the white student with the best time, a Black student would have standing to sue.
“I can’t imagine that would happen,” Murphy said, trying to dodge the question.
Yet another judge pointed out that courts routinely order changes to disciplinary records in employment-discrimination cases.
Murphy was in an awkward position because Block, who represented the transgender students and was arguably on his side, necessarily had to argue that students had standing. Block urged the court to reach the merits and said the procedural issues “are not a hill I want to die on.”
Block instead argued that the case was barred by the Supreme Court’s Pennhurst doctrine, which limits certain types of suits against state defendants in federal court. The judges spent much of the 90-minute argument debating whether the doctrine applied, and in the end the plaintiffs’ lawyer — John Bursch of the Alliance Defending Freedom, a Christian legal advocacy group — told the judges that they didn’t chance to decide; they could simply find that the plaintiffs had standing and send the case back to the trial court.
The lawsuit has been a political football. In 2020 the Trump administration threatened the athletic conference with legal action if it continued allowing trans athletes to compete. Tut the Biden Administration reversed that policy, however, in the wake of an executive order supporting trans rights. Some 68 organizations filed amicus briefs in the case, including a number of states and the American Medical Association.
Nationwide, 18 states have enacted laws that ban trans athletes from competing against student of their new gender. Last August a Utah judge issued a preliminary injunction against that state’s law, finding that it likely violated a state constitutional provision similar to the Equal Protection Clause.
A similar preliminary injunction was issued by a federal judge in 2020 against Idaho’s law. In January of this year the Ninth Circuit rejected a mootness challenge and sent that case back for further proceedings.
With the Second Circuit’s en banc panel featuring 15 judges , three who voted to dismiss the case below, it was hard to predict what the outcome would be, especially given the uncertainty of the Pennhurst issue. U.S. Circuit Judge Denny Chin, who was on the original panel, jousted with Bursch over whether his clients had suffered a legal injury.
They’re seeking “psychic satisfaction” and “a moral victory,” Chin said, “but that’s different from Article III standing.”
Bursch told Chin that “if someone tried to take away your magna cum laude designation from law school, you’d view that as an injury.”
“No, I wouldn’t” Chin said with a grin. “Because I wasn’t magna cum laude in law school.”
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