By St. John’s University Professor Robert J. Romano, JD, LLM
A federal district court in Connecticut has dismissed the case of Soule v. Connecticut Association of Schools,[1] acontroversial lawsuit brought on behalf of four female high school track and field athletes and funded by Alliance Defending Freedom (ADF), an Arizona based conservative Christian group that has been involved in a number of legal cases involving transgender athletic participation issues.
On February 12, 2020, the ADF on behalf of the four named plaintiffs, two high school seniors, Selina Soule and Chelsea Mitchell, and two sophomores, Alanna Smith and Ashley Nicoletti, filed a federal lawsuit challenging the transgender athlete participation policy of the Connecticut Interscholastic Athletic Conference (CIAC), the governing body for interscholastic athletics in Connecticut.[2] The complaint alleges that the CIAC’s allowance of high school students to participate in sex-segregated sports consistent with their identities puts non-transgender girls (cisgender)[3] at a competitive disadvantage in girls’ track and field and, as a result, violates any and all rights guaranteed by Title IX of the Education Amendments Act of 1972.[4]
As part of the case, a preliminary injunction was sought to prevent transgender female athletes (those born biologically male but identify as female) from competing in track and field events scheduled during the 2020 Spring Outdoor Track season. It was argued that without the injunction, cisgender female athletes would face unfair competition by two competition transgender female athletes and that they would be denied the opportunity to compete for ‘places on the victory podium’. It was claimed that the CIAC’s transgender participation policy is –
‘Now regularly resulting in boys displacing girls in competitive track events in Connecticut – excluding specific and identifiable girls including Plaintiffs from honors, opportunities to compete at higher levels, and public recognition critical to college recruiting and scholarship opportunities that should go to these outstanding female athletes.’[5]
The defendants[6] moved to dismiss the complaint on August 21, 2020, claiming that two of the cisgender athletes, Selina Soule and Chelsea Mitchell, have subsequently graduated from high school and are no longer eligible to compete in CIAC sponsored track and field events, so therefore there is no case or controversy before the court regarding their claims. While, in addition, the two cisgender athletes who have high school eligibility remaining, Alanna Smith and Ashley Nicoletti, lack standing to bring this action because a) neither has identified a transgender female athlete who would be competing in the upcoming track and field season, and b) even if they could identify a transgender female athlete who would be competing in track and field next season, they cannot ‘credibly allege’ that they will be competing against these transgender female athletes, nor that they will finish in a particular spot, in particular races next year if girls who are transgender are barred from competing.”[7]
However, on April 25, 2021, the federal court dismissed this matter, not based on the merits or arguments presented by either side, but because the reasoning for requesting the enjoinment of the CIAC’s transgender participation policy had become moot. The court found that the two transgender female athletes who provided the ‘impetus for this action’ had since graduated and that there is no indication that the two plaintiffs with remaining high school eligibility, Alanna Smith and Ashley Nicoletti, will encounter competition by transgender female athletes in CIAC sponsored events next season. The court noted that ‘it is still theoretically possible that transgender female athletes could compete next season, but that a ‘legally cognizable injury’ is hypothetical and speculative since the cisgender student-athletes could not show that transgender female athletes would be running against them next season, nor that they would achieve substantially similar results as the prior transgender athletes did in previous year’s competitions.
One interesting observation the court noted in its decision was that three of the four cisgender student-athletes involved in this action would not have had much different placements in their track events if they had not competed against the two transgender female athletes, with only Chelsea Mitchell seeing a significantly different outcome. Because of this fact, the court also rejected the plaintiffs’ request to strike the transgender female athletes from the disputed races altogether and move all the other competitors up one position in each race.
Although the court reached a logical conclusion based upon the facts it was presented, what is unsatisfying about a decision based on the concept of mootness, as opposed to one decided on the merits, is that it leaves practitioners, and in this case, high school governing bodies, athletic directors, together with the student-athletes themselves, without a clear understanding of whether or not the inclusion of transgender athletes based upon how they identify complies with or is subject to Title IX review.
The defendants’ claim that prohibiting transgender female athletes from participating in women’s sports would be an exclusion from participating in athletics altogether, denying them the benefits of athletic opportunities as outlined in Title IX. However, since the plaintiffs’ lawsuit was filed in February 2020, several states have enacted legislation banning transgender female athletes from participating on women’s high school sports teams altogether, and more than two dozen states are contemplating such bans. Therefore, as this contentious issue continues to be debated and argued by governing bodies, state legislators and worst of all – ideologs such as the Alliance Defending Freedom, any guidance that this court could have provided will have to wait for another day.
[1] Soule v. Connecticut Association of Schools, Case No. 3:20-cv-00201.
[2] The CIAC policy requires member schools to determine eligibility to participate in sex-segregated athletics based on “the gender identification of the student in current school records and daily life activities in the school . . .”
[3] The term that refers to an individual whose gender identity aligns with the one typically associated with the sex assigned to them at birth.
[4] 20 U.S.C. Section 1681-1688.
[5] Plaintiff’s Second Amended Complaint. Specifically, the four female students took issue with the fact that two transgender female senior track and field athletes, (Andraya Yearwood and Terry Miller) had been allowed to compete against them in outdoor track.
[6] The CIAC, together with the Bloomfield, Cromwell, Glastonbury, Canton and Danbury Public Schools Boards of Education.
[7] Ruling and Order filed April 25, 2021.
