By Monyae Williamson-Gourley
On December 16, 2022, the United States Court of Appeals for the Second Circuit affirmed the ruling of a lower court to dismiss Soule v. Connecticut Association of Schools, Inc.[1] The lawsuit alleged that the defendants-appellees’ Transgender Participation Policy – which permits high school athletes to participate in sports consistent with their affirmed gender rather than biologically assigned sex – violated Title IX of the Education Amendments Act of 1972 (Title IX).[2] The court found no such violation in a unanimous 3-0 ruling. As of February 2, 2023, the case has not been appealed to the U.S. Supreme Court.
Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti, the plaintiffs-appellants and cisgender[3] girls, were former high school track athletes who raced against transgender girls in events sanctioned by the Connecticut Interscholastic Athletic Conference (CIAC). Their complaint alleged trans girls have unfair physiological advantages over their cis competitors, and as such, “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.”[4] To remedy these purported Title IX violations, the plaintiffs-appellants sought monetary relief and injunctions to:
1. Prevent future enforcement of the Transgender Participation Policy, thereby barring transgender athletes from participating in CIAC-sponsored sports inconsistent with their biologically assigned sex; and
2. Remove athletic records/times achieved by trans athletes in sports inconsistent with their biologically assigned sex.
The district court dismissed each claim on April 25, 2021, determining that the request for enjoinment became moot after Andraya Yearwood and Terry Miller (the trans athletes at the center of the case) graduated in June 2020. The court further stated that the plaintiffs-appellants’ arguments concerning the records were speculative, and the request for damages was barred.
Last year, the Second Circuit ruled that the appellants’ claims that the CIAC policy deprived them of “a chance to be champions”[5] and may affect future employment opportunities lacked standing. All four competed in state track championships and secured first-place finishes in several events, including races versus Yearwood and Miller. The court also determined there was insufficient evidence demonstrating that prospective employers evaluate applicants based on scholastic athletic achievement or its impact in the hiring process. Both theories, subsequently, failed to establish injury in-fact and redressability.
The plaintiffs’ claim for damages may have been influenced by an ever-changing political environment. Such claims were barred under the Pennhurst case, which concluded, “There can, of course, be no knowing acceptance if a State is unaware of the conditions [imposed by Congress’s Spending Clause legislation] or is unable to ascertain what is expected of it.”[6] However, the Supreme Court’s recent interpretation of Title VII of the Civil Rights Act in Bostock v. Clayton County[7] was also acknowledged by the Second Circuit. Title VII includes language identical to Title IX (i.e., “on the basis of sex”), and the former now includes protections against gender-based discrimination. Thus, Bostock, alongside a slew of cases regarding trans students and Title IX,[8] led the Second Circuit judges in Soule to determine 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.”
Since Soule was initially filed in 2020, various states have either introduced or adopted legislation requiring athletes to participate in sports that align with their assigned sex from birth. Indeed, 18 states currently have bans in place.[9] Precedent from this case may be influential in future litigation. For example, the potential reopening[10] of Adams v. School Board of St. Johns[11] which, in an en banc 7-4 decision by the Eleventh Circuit, recently determined that segregating bathrooms and locker rooms based on biological sex did not violate Title IX. Further decisions by the courts will continue to shape the scholastic sports landscape for years to come.
Monyae Williamson-Gourley is a second-year doctoral student at Florida State University whose research interests center on diversity, equity, and inclusion in sport.
[1] Soule v. Connecticut Association of Schools, Case No. 21-1365-cv (2d Cir. Dec. 16, 2022).
[2] Title IX holds that “no person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits or, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance” – Title IX of the Education Amendments of 1972, RL. 92–318, 20 U.S.C. § 1681.
[3] The term “cisgender” refers to those “whose gender assigned at birth has always coincided with their identity/expression” – Beemyn, G., & Rankin, S. (2011). The lives of transgender people. New York, NY: Columbia University Press.
[4] Soule v. Connecticut Association of Schools, Case No. 21-1365-cv (2d Cir. Dec. 16, 2022).
[5] Id.
[6] Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).
[7] Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 590 U.S. 140, 207 L. Ed. 2d 218 (2020).
[8] Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020).; Doe v. Boyertown Area School District, 139 S. Ct. 2636, 204 L. Ed. 2d 300 (2019).; Grimm v. Gloucester County School Bd., 972 F.3d 586 (4th Cir. 2020).
[9] Movement Advancement Project. Equality Maps: Bans on Transgender Youth Participation in Sports. https://www.lgbtmap.org/equality-maps/sports_participation_bans. Accessed 01/25/2023.
[10] On January 6, 2023, U.S. District Judge Roy Altman issued an order to reopen the lawsuit following the Eleventh Circuit’s 150-page en banc ruling.
[11] Adams v. School Board of St. Johns County, 968 F.3d 1286 (11th Cir. 2020).
