A unanimous three-judge panel of the New York City-based US Court of Appeals for the Second Circuit has rejected an appeal by the conservative religious litigation group Alliance Defending Freedom (ADF) from a ruling by Senior US District Judge Robert N. Chatigny, who last year had rejected a challenge to the Connecticut Interscholastic Athletic Conference (CIAC) policy of allowing transgender students to participate in high school athletic competitions consistent with their gender identity.
The December 16 opinion for the Second Circuit panel by Judge Denny Chin found that the plaintiffs (four cisgender women who competed on their high school track teams in CIAC-sponsored competition) lacked standing for the injunctive relief they were seeking, and that their claim for damages was barred because the defendants were not on notice when they accepted federal funding that their transgender participation policy would violate Title IX of the Education Amendments of 1972.
Indeed, the court found that Title IX most likely has the opposite effect, requiring schools to allow transgender students to compete consistent with their gender identity. ADF, claiming in a press release that the court “got it wrong” and that it was discriminatory for girls to compete against “males” in athletics, announced that it was considering “all options,” which could include a possible appeal, either requesting “en banc” review by the Second Circuit or requesting the Supreme Court to hear the case. (ADF routinely calls transgender girls “boys” or “males” in its activities attacking affirmative transgender rights policies.)
The plaintiffs — Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti — were high school track competitors who claimed that allowing two transgender girls — Andraya Yearwood and Terry Miller — to compete with them in CIAC-sponsored matches unfairly discriminated against plaintiffs on the basis of their sex. Yearwood and Miller finished ahead of each of the plaintiffs in various track events during 2019 competition, although there were also events in which one or more of the plaintiffs finished ahead of the transgender girls.
The plaintiffs claimed that the CIAC policy violates Title IX, which forbids schools that receive federal funding from denying “equal educational opportunity on the basis of sex.” Title IX provided the impetus for school programs to significantly increase opportunities for girls to participate in athletics since it was passed in 1972. More recently, it has been interpreted by many (but not all) federal courts to prohibit discrimination because of gender identity. This interpretation was bolstered in June 2020 when the US Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” extends to claims of discrimination because of “transgender status.” Federal courts have generally looked to Title VII interpretations of “discrimination because of sex” when interpreting Title IX.
The plaintiffs alleged that the CIAC policy “is now regularly resulting in boys displacing girls in competitive track events in Connecticut,” that “students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born male.” They claimed a “direct violation” of Title IX.
But all the plaintiffs were able to compete, and in the entire state of Connecticut there were only two transgender girls with whom they were competing. Furthermore, by the time their suit was filed and Judge Chatigny ruled on the defendants’ motions to dismiss the case, both of the transgender girls (who were permitted to intervene as defendants represented by the ACLU) had graduated and there were no transgender girls participating in CIAC-sponsored meets. The plaintiffs had asked the court to order the CIAC to delete the transgender girls from the records of the matches in which they had competed, which would elevate one or more of the plaintiffs to higher standing in some of those matches.
The Connecticut Commission on Human Rights and Opportunities also intervened as a defendant in support of the CIAC policy.
Judge Chatigny concluded that the plaintiffs lacked standing for the relief they were seeking. Some of their claims were deemed moot by the passage of time and subsequent events. By the time the motion to be dismiss was decided, the plaintiffs, who had graduated from high school, were no longer affected by the policy, so they lacked standing to seek an injunction against its enforcement. Also, the plaintiffs alleged that their athletic records were crucial to their ability to gain college admissions and subsequent employment, but by the time the Court of Appeals was considering this appeal, the plaintiffs had all been admitted to college and the impact of their final standing in CIAC competitions on their employment opportunities was deemed too speculative to support a claim of actual injury, which is necessary for the relief they were seeking. The Court of Appeals agreed with Judge Chatigny and affirmed the denial of injunctive relief.
As to the plaintiffs’ damage claims, under a 1981 Supreme Court precedent, Pennhurst State School & Hospital v. Halderman, a damage claim under a statute that imposes a federal non-discrimination requirement on a defendant because the defendant is the recipient of federal funds may not be made unless the funding recipient was on notice when they decided to accept the funding about the specific non-discrimination obligation to which they were subjecting themselves by accepting the money.
The burden is on the plaintiff to show that defendants were “on notice” that by letting transgender girls compete, they were violating the Title IX rights of cisgender girls. “We conclude that only the opposite has been shown here,” wrote Judge Chin for the Court of Appeals.
The judge first noted that “guidance” from the Department of Education (DOE) under Title IX “has fluctuated with the changes in presidential administrations.” In 2016, during the Obama administration, DOE advised, based on the Equal Employment Opportunity’s decision that Title VII covered gender identity discrimination, that schools could not discriminate against transgender students, and this required allowing them to participate in school athletics. In 2017, under the Trump administration, that guidance was withdrawn by DOE on the ground that it needed to be “considered more completely.” In 2020, DOE sent the CIAC a letter of “impending enforcement action” reacting to publicity about this lawsuit, interpreting Title IX to require that gender-specific sports teams be separated based on “biological sex,” but that was withdrawn by the new Biden administration in February 2021 before any action was taken by DOE against the CIAC.
Perhaps more significantly, Judge Chin pointed out, although this precise issue has not yet been decided by other courts of appeals in the sports context, there have been numerous court of appeals decisions in other circuits, many of which were denied review by the Supreme Court, holding that schools covered by Title IX cannot discriminate against transgender students, and cases holding that allowing transgender students to use restrooms consistent with their gender identity do not violate the Title IX rights of cisgender students.
“Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender specific sports teams,” wrote Chin, “such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the Policy violates Title IX.” The court also rejected ADF’s argument that the plaintiffs were entitled to an exception from the Pennhurst “notice” rule because defendants “intentionally” discriminated against the plaintiffs, commenting that “the Policy could not be considered ‘intentional conduct that violates the clear terms of’ Title IX, given Bostock and the decisions from other Courts of Appeals. Thus the ‘intentional conduct exception is inapplicable here.’”
In its press release denouncing the decision, ADF pointed out that 18 states have now passed laws requiring that participation in sex-specific athletic competition must be based on “biological sex” as identified at birth. However, if Title IX protects transgender girls from being excluded from participating in such sports, the state laws would be preempted by federal law. Although the Second Circuit decision does not directly rule on the merits of that question, Judge Chin’s ruling strongly suggests that attempts by schools to exclude transgender girls could subject the schools to Title IX liability.
Senior Judge Chatigny was appointed by President Bill Clinton. Judge Chin was appointed to the Second Circuit Court of Appeals by President Barack Obama.