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2nd Circuit Holds that Cisgender Female Athletes Have Standing to Sue Over Transgender Participation in Athletics

January 30, 2024

Important takeaways: The 2nd Circuit Court of Appeals remanded a case to district court, holding that cisgender female athletes did have standing to sue over a policy allowing transgender participation in high school athletics.

Facts: Since 2013, the Connecticut Interscholastic Athletic Conference (the “CIAC”) and its member high schools has followed the “Transgender Participation Policy” which allows high school students to compete on gender specific athletic teams consistent with their gender identity if that is different from “the gender listed on their official birth certificates.” Four cisgender female athletes who competed against transgender female athletes allege the Policy violates Title IX because it results in cisgender female students having materially fewer opportunities for victory, public recognition, athletic scholarships, and future employment than transgender female athletes.

The four athletes sued and requested monetary damages, an injunction preventing enforcement of the Policy, and in injunction to alter the records of certain girls’ track events to remove the records achieved by two transgender girls. The plaintiffs alleged that competing against transgender female athletes deprived them of a fair shot at statewide titles. Two transgender female students competed in track events against the plaintiffs throughout their time in high school. The cisgender female students won some events and the transgender female students won others throughout their years competing. The plaintiffs allege they would have held more state titles and advanced in competition if the transgender female athletes had not competed.

The 2nd Circuit Court of Appeals held that the Plaintiffs lacked standing to seek an injunction rewriting the records and were barred from collecting monetary damages. The case was then appealed to the 2nd Circuit to hear it en banc, meaning with all justices instead of the usual panel of 3. The Court sitting en banc reversed the panel’s decision and held that the Plaintiffs pled facts sufficient to establish standing. To have standing, a plaintiff must show that they (1) suffered an injury in fact, (2) the injury is fairly traceable to the challenged conduct, and (3) that the injury is likely to be redressed by a favorable judicial decision. All Plaintiffs personally competed in high school track in Connecticut, and they all identified instances where they competed against and placed lower than one or both of the transgender athletes. The Court held the Plaintiffs adequately pled a concrete, particularized, and actual injury in fact because of the  alleged denial of equal athletic opportunity and loss of publicly recognized titles and placements during track and field competitions in which they finished behind the transgender athletes..

The Court also held that the alleged injury could be plausibly redressed by monetary and injunctive relief because directing CIAC to alter public records could at least provide Plaintiffs with the publicly recognized titles and placements they would have received if the transgender athletes had not competed and beat the Plaintiffs in specific races to reflect their alleged athletic achievement. The Court recognized that the transgender athletes also had an interest in preventing the records from being altered, holding that the issue had to be remanded to the district court for them to decide which interest was greater. The Court further held that the merits of the Plaintiff’s Title IX case had to be decided before any court could determine whether monetary damages are appropriate, another issue for the district court to decide.

The Court vacated the judgment of the district court and remanded the issue for further proceedings. This means they send the issue back down to the lower court to be decided again with the advice from the circuit court.

What this means: Transgender athlete participation in high school athletics has been a hot button topic in may courts. The 9th Circuit Court of Appeals, where Montana is located, recently upheld an injection on an Idaho law prohibiting transgender female participation in girls’ athletics in public schools. The Court held that the specific law in Idaho did not pass heightened scrutiny but did not say if any law or policy preventing transgender participation in sports would be unconstitutional. As more states pass laws allowing or preventing transgender participation in sports, the issue will likely continue to come up in courts and eventually will hit the Supreme Court of the United States. We will provide updates as this happens.

About this case: Soule v. Conn. Assoc. of Sch., 2th Circuit Court of Appeals, December 15, 2023. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, Kevin, and Kali at 406-542-1300 to discuss these issues.

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