Opponents of Connecticut’s policy letting transgender girls compete in girls high school sports will get a second chance to challenge it in court, an appeals court ruled Friday, which revived the case without weighing in on its merits.
Both sides called it a win. The American Civil Liberties Union said it welcomes a chance to defend the rights of the two transgender high school track runners it represents. The Alliance Defending Freedom, which represented the four cisgender athletes who brought the lawsuit, also said it looks forward to seeking a ruling on the case’s merits.
In a rare full meeting of all active judges on the 2nd U.S. Circuit Court of Appeals in Manhattan, judges found the cisgender runners have standing to sue and have described injuries that might qualify for monetary damages. The runners also seek to alter certain athletic records, alleging they were deprived of honors and opportunities at elite track-and-field events because they say “male athletes” were permitted to compete against them.
The case had been dismissed by a Connecticut judge in 2021, and that decision was affirmed by three-judge panel of the 2nd Circuit a year ago.
At least 20 states have approved a version of a blanket ban on transgender athletes playing on K-12 and collegiate sports teams statewide, but a Biden administration proposal to forbid such outright bans is set to be finalized by March after two delays and much pushback. As proposed, the rule announced in April would establish that blanket bans would violate Title IX, the landmark gender-equity legislation enacted in 1972.
Under the proposal, it would be much more difficult for schools to ban, for example, a transgender girl in elementary school from playing on a girls basketball team. But it would also leave room for schools to develop policies that prohibit trans athletes from playing on more competitive teams if those policies are designed to ensure fairness or prevent sports-related injuries.
In a statement Friday, the American Civil Liberties Union and the ACLU Foundation of Connecticut cast the ruling as a victory for the two runners they represent — Andraya Yearwood and Terry Miller — noting that the 2nd Circuit wrote that the transgender runners have an “ongoing interest in litigating against any alteration of their public athletic records.”
Roger Brooks, a lawyer for the Alliance Defending Freedom, said the decision was a victory “not only for the women who have been deprived of medals, potential scholarships, and other athletic opportunities, but for all female athletes across the country.”
In 2020, the Alliance sued on behalf of four athletes — Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti — over a Connecticut Interscholastic Athletic Conference policy that allows transgender girls to compete in girls’ athletic events.
Three of 15 judges who heard arguments earlier this year fully dissented on Friday, while five other judges dissented to portions of the majority ruling.
In a dissent to the majority ruling, Circuit Judge Denny Chin noted that three of the cisgender athletes alleged that only one track event in their high school careers were affected by the participation of transgender athletes while a fourth athlete alleged that four championship races were affected.
In a footnote, Chin wrote that all four plaintiffs currently compete on collegiate track-and-field teams, some after being awarded scholarships, while neither of the transgender athletes who intervened in the case have competed since high school.
And he pointed out that no one was able to cite any precedent in which a sports governing body retroactively stripped an athlete of accomplishments when the athlete complied with all existing rules and did not cheat or take an illegal substance.
“It is not the business of the federal courts to grant such relief,” Chin said.