A battle over Title IX: Can it be used to exclude trans athletes?

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that trans athletes to compete on sports teams that align with allowing their gender identity violates the rights of cis women.

The case, Soule et al v. Connecticut Association of Schools et alwas dismissed by a federal district judge last year, but it has proved to be consequential.

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The lawsuit is frequently cited by those who want to bar trans women and girls from competing in women’s sports, with several of the plaintiffs advocating for states to pass more restrictions. Advocates on both sides say the case has been instrumental in shaping the public narrative about trans girls in sports.

Here’s what to know about it.

What are the plaintiffs arguing?

The plaintiffs in this case are four young cis women from Connecticut who competed in track and field during high school: Selina Soule, Chelsea Mitchell, Ashley Nicoletti and Alanna Smith. They are challenging the Connecticut Interscholastic Athletic Conference’s policy of allowing trans high school students to compete in sex-segregated sports that align with their gender identity.

This policy, the suit claims, puts the cis women at a competitive disadvantage in girls’ track, so much so that it violates their Title IX rights, which require schools to provide “equal athletic opportunity for members of both sexes.” In other words, they are arguing that Title IX protections for cis girls are compromised when trans girls are allowed to compete against them.

Competing against trans girls, their complaint said, left the plaintiffs with “materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in postseason elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records . “

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This caused irreparable harm to cis female students, the ADF argues, citing a 2019 race in which Mitchell competed against two trans girls, Terry Miller and Andraya Yearwood.

In that competition, Mitchell placed third – behind Miller and Yearwood. If it weren’t for CIAC’s policy, the complaint alleges, Mitchell would have placed first, been named State Open champion, and been publicly recognized for her achievements – which could have influenced her college prospects and employment opportunities.

“It’s really difficult to quantify how the girls recruiting has been impacted over the long haul. But what we do know is that any loss in an unfair race is wrong, ”said Christiana Kiefer, senior counsel for the ADF.

The complaint asked the court to block all transgender girls from competing in women’s sports in Connecticut. The plaintiffs also want their records amended to reflect what their results would have been if Miller and Yearwood had not competed against them.

What are the defendants arguing?

The defendants are the Connecticut Association of Schools as well as the school boards representing the schools the four plaintiffs attended. The trans athletes, Miller and Yearwood, were not named as defendants but have joined the suit to defend the Connecticut policy. They are being represented by the American Civil Liberties Union, which has asked the court to dismiss the complaint.

“The entire premise is just blatantly false,” said Joshua Block, a senior staff attorney at the ACLU’s LGBTQ Project.

It is not true that the plaintiffs “can’t win” against trans girls, the ACLU argues in court documents, pointing to their “extensive record of victories,” which include competitions where they outperformed their trans peers.

ACLU filings allege that Smith and Mitchell bested both Miller and Yearwood in several state championships between 2019 and 2020. All four plaintiffs have since received scholarships to run track in college, which contradicts their claim that they lost scholarship or recruitment opportunities, according to the ACLU . Meanwhile, neither Miller nor Yearwood was offered athletics scholarships.

“As a result of this whole process, they’re not competing in sports at all,” Block said.

The ACLU has argued that because all four plaintiffs have graduated from high school, as have the defendants, the court cannot block Connecticut’s trans-inclusive policy, since they are not being directly harmed by it. According to the ACLU, there are no out trans girl athletes in Connecticut’s schools at present.

What have the courts said?

US District Judge Robert Chatigny dismissed the lawsuit in April 2021 on procedural grounds, ruling that the issue was “moot” – and so could not be considered by the courts. At the time, two of the plaintiffs had graduated from high school, and Chatigny found that “there is no indication that Smith and Nicoletti will encounter competition by a transgender student” in their upcoming track season.

Chatigny also noted that “courts across the country have consistently held that Title IX requires schools to treat transgender students consistent with their gender identity.”

The ADF has appealed Chatigny’s decision to the New York-based US Court of Appeals for the 2nd Circuit.

At a hearing Thursday, ADF attorneys argued that their clients were still affected by having to race against trans athletes, which rendered their competitive records inaccurate. Their complaint should be sent back to the district court – potentially to a different judge – to decide, they said.

“A primary purpose of competitive athletics is to strive to be the best and, yes, also to be recognized,” ADF attorney Roger Brooks told the three-judge panel. “Trophy shelves exist in high schools because we all recognize that the past, and history and records matter.”

The ACLU focused its arguments on protections provided by Title IX.

“The question in this case is… not whether Title IX requires inclusive policies. It’s whether Title IX prohibits them, ”Block said. The plaintiffs’ allegations “don’t come anywhere close to showing an actual denial of equal athletic opportunity.”

The appellate judges will now have to decide whether to uphold the original dismissal, return it to a district court so a judge can rule on the merits, or decide the case themselves.

On the basis of legal precedent: the defendants.

“The vast majority of the precedent from federal courts recognizes that Title IX protects transgender students from discrimination,” said Scott Skinner-Thompson, an associate professor at the University of Colorado Law School.

“In those rulings, trans students were being forcibly excluded by schools. Here, the cisgender students are not being excluded in any way. They’re allowed to compete in sports consistent with their gender identity. “

There is also US Supreme Court precedent to consider. In 2020, a conservative majority decided that protections against sex discrimination under Title VII also apply to gay and trans employees. Title VII and Title IX are usually interpreted in the same way, Skinner-Thompson noted.

Accepting the plaintiffs’ position on Title IX would require the courts to interpret the federal statute in a completely different way. Rather than protect trans students, Title IX would be wielded against them.

How could this case affect the future of student athletics?

If the case is dismissed or decided in favor of the defendants – the most likely eventual scenario – it would affirm that allowing trans students to compete in sports categories aligning with their gender identity is consistent with federal law and may even be required, Skinner-Thompson said.

If judges rule in favor of the plaintiffs, the ruling would create a conflicting interpretation of Title IX that would need to be settled by the courts.

What impact has it already had?

No matter how the case is decided, it has already affected how people talk about trans participation in sports.

Often, the goal of these kinds of challenges is not just to shape legal doctrine, “but to shape societal understanding of issues,” Skinner-Thompson said.

The case has been “extremely important” in shaping public perception of trans youths’ participation in sports, said Kiefer of the ADF. (The ADF has helped craft model legislation for anti-trans sports restrictions and bathroom bills across the country.)

The plaintiffs ‘stories have been referred to by states looking to pass laws that would restrict trans girls’ competing in female sports. Soule, among the very first cis female athletes to speak out on the issue, has given testimony to a number of state legislatures – including in Kansas and North Dakota – supporting these policies.

“I do think it’s been the start of a movement that is meant to restore fairness and a level playing field to women’s sports,” Kiefer said.

But this case’s influence doesn’t stop at sports, said ACLU attorney Block.

“The topic of athletics is, in a lot of conversations, sort of an entry point for driving a wedge into a broader argument: that girls who are transgender should not be treated as girls, and that boys who are transgender should not be treated as boys. “

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