Too Speculative: Court Dismisses Suit to Write Transgender Athletes out of the Record Books

Soule v. Connecticut Association of Schools, 21-1365-cv (2d Cir., December 16, 2022)

Four cisgender Connecticut high school track student-athletes(“Plaintiffs”) sued the Connecticut Interscholastic Athletic Conference (“CIAC”) and its member high schools (collectively, “Defendants”), alleging that the CIAC’s Transgender Participation Policy (“the Policy”) violates Title IX.

PROCEDURAL HISTORY

Plaintiffs, alleging Title IX violations, requested damages and two injunctions – one to enjoin future enforcement of the Policy and one to alter the records of certain prior girls’ track events to remove the victories of transgender girls. Two of the targeted transgender girls (“transgender students”) intervened in the case to oppose Plaintiffs. Plaintiffs alleged they were subject to discrimination because of their inability to compete fairly against trans-women who had physical advantages over them as cisgender athletes (whose identity matches their sex assigned at birth).

The district court dismissed Plaintiffs’ claims, holding:

1. Plaintiffs request to enjoin future enforcement of the Policy was moot, meaning there was no live dispute for the court to resolve, as the transgender students identified in the lawsuit were no longer high school students.
2. Plaintiffs lacked standing to assert their claim for an injunction to change the records because the relief Plaintiffs requested – changing the record books – was too speculative.
3. Monetary damages are unavailable for Plaintiffs’ Title IX claim.

Plaintiffs appealed the district court’s decision.

SUMMARY OF FACTS

Defendants applied the Policy since 2013, permitting high school students to participate on gender-specific sports teams consistent with their gender identity. Plaintiffs alleged that the Policy forced them to compete against female transgender athletes, depriving them of a fair chance to win statewide titles because it inequitably reduced the athletic opportunities available to women. Plaintiffs also alleged that the Policy impacted their individual achievements by depriving them of certain state championship titles and the opportunity to advance to higher levels of competition. In some races, Plaintiffs finished ahead of the transgender students, and in some races the transgender students finished ahead of Plaintiffs.

Additionally, Plaintiffs sought a declaration that the Policy violated Title IX because it failed to provide competitive opportunities that effectively accommodated the abilities of girls. This lawsuit stirred quite a debate over whether Title IX ensures a right to compete, or a right to be able to win. Plaintiffs allege the Policy failed to provide equal treatment, benefits, and opportunities for girls in athletic competition. Plaintiffs also sought monetary damages for Title IX violations and an injunction requiring the CIAC and its member schools to remove transgender athletes from any competition records. Finally, Plaintiffs moved for a preliminary injunction to prevent transgender girls from competing in the upcoming outdoor girls’ track season.

Defendants moved to dismiss the complaint because (1) Plaintiffs lacked standing to seek the requested remedies; (2) the requested relief would violate the rights of transgender students under Title IX and the Equal Protection Clause of the Fourteenth Amendment; (3) Plaintiffs had not plausibly alleged that competing against transgender girls violated Title IX; and (4) Plaintiffs’ claims for monetary relief under Title IX were barred.

Prior to analyzing the merits of the case – that is, whether the Policy ran afoul of Title IX or, as Defendants argue, whether the Policy protects Title IX rights, the court must determine whether the parties have standing. If the parties do not have standing, the court cannot decide the merits of the case.

FINDINGS AND SIGNIFICANT ISSUES

Standing

Standing is a concept that exists to act as a gateway to the federal courts and to confuse law students during their Civil Procedure classes. If it does not make sense to you, you are not alone. Nonetheless, here’s a quick primer on standing.

In relevant part for the purposes of this piece, the standing requirement ensures that the appropriate parties allege concrete claims that the court can actually redress, depending on the outcome of the case. The standing requirement prevents the court from having to delve into speculative claims not based in fact, as well as claims that would waste the court’s time if nothing could reasonably be done to rectify the alleged wrongdoing.

For example, if I feel my college violated my Title IX rights, my friend could not bring a Title IX claim against the college for wrongs done to me. My friend is not an appropriate party to sue for violations of my rights. Alternatively, if my college violated my Title IX rights after reporting an assault by another student, and I sue in federal court, asking the court for a pay increase for my on-campus job is inappropriate. The court will likely not hear my case because the requested relief is disconnected from the Title IX violation and is beyond the power of the court.

That said, to satisfy the standing requirement, or the legal right to bring a claim in federal court, Plaintiffs must establish that:

1. They have suffered an injury, or in other words, they have a legally protected interest.
   1. The injury must be concrete and particularized and actual or imminent, not speculative or hypothetical.
2. The injury is traceable to the challenged action of the defendant.
3. It is likely that the injury will be appropriately redressed by a court decision favorable to Plaintiffs.

A Chance to be Champions

The court held that Plaintiffs’ alleged injury – deprivation of a chance to be champions – failed because Plaintiffs did not allege a cognizable injury or deprivation, as the first element identified above requires. Indeed, the court pointed out that the Plaintiffs had competed for state titles and had been champions, including when competing against transgender students. No deprivation occurred.

Additionally, the court questioned whether it had the power to redress the alleged deprivation – the third element above. Changing the record books would not give Plaintiffs a chance to be champions. Perhaps damages or an injunction requiring do-overs of the races would suffice, but those remedies are either not available (see below) or were not sought by Plaintiffs. The races complied with the rules in effect at the time and records accurately reflect the results. Additionally, Plaintiffs did not point to a legal framework for invalidating or altering records of athletes who competed in conformity with the applicable rules.

The court noted that a ruling in favor of Plaintiffs would provide nothing more than “psychic satisfaction,” which is not a cognizable injury in federal courts.[1] Therefore, Plaintiffs did not establish the elements of standing and the claim could not proceed.

Prospects at Future Employment

Next, the Plaintiffs’ argued that unchanged record books could impact Plaintiffs’ prospects at future employment. The court held the argument was too speculative to satisfy standing requirements. Plaintiffs asserted that since society places a high value on athletic achievements, employers may consider Plaintiffs more favorably after editing the record books. The court pointed to the fact that the record books, as written, demonstrate Plaintiffs’ athletic achievements and Plaintiffs failed to show how the current record books could harm their future employment opportunities – and how that harm would be remedied if the court changed the record books. At best, Plaintiffs could only speculate as to how prospective employers would exercise their discretion when hiring and whether the requested revisions would have had any impact. The court also took issue with the question of redressability for many of the same reasons. A favorable decision for Plaintiffs would not likely change their future employment prospects or outcomes.

Claims for Damages

Plaintiffs requested monetary damages under Title IX for the alleged violations. The court, citing a bedrock Title IX precedent, emphasized that damages actions are only available under Title IX where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.[2] The only exception applies to situations in which a funding recipient engages in intentional conduct violating the clear terms of Title IX.

The court held that CIAC enforcing the Policy did not meet either of those requirements. The Department of Education’s Office for Civil Rights (“OCR”), the federal agency charged with Title IX implementation and oversight, fluctuated between positions on transgender students’ participation in athletics between 2016 and 2020. As a result, OCR never clearly established that permitting transgender students to participate on athletic teams consistent with their gender identity violated Title IX. Additionally, after the Supreme Court held that Title VII includes protections for sexual orientation and gender identity, other federal courts are increasingly interpreting Title IX to protect gender identity.[3] Indeed, as a result, some federal courts have held that recipients acting in the manner Plaintiffs advocate for violates Title IX. As a result, Defendants could not have had notice of potential liability, so monetary damages are not available.

The court dismissed the complaint.

KEY TAKEAWAYS

• Transgender student participation in athletics continues to be an area of legal development and unsettled questions. Although the proposed 2023 Title IX regulations foreshadow the Department of Education’s intention to extend Title IX protections to include sexual orientation and gender identity, the final regulations likely will not speak directly to the issue of athletic participation for transgender students. The Department of Education is expected to release separate proposed regulations on that topic in the near future. As a result, transgender student participation in athletics will continue to be the subject of state legislature and federal court actions. Here, the court drew a line in the sand, pushing back against Plaintiffs’ claims for relief, holding that Plaintiffs did not meet the threshold standing requirements. It is important to note that the court here did not reach the merits of Plaintiffs’ claims, thus the court stopped short of concluding whether the Policy violated Title IX. In future cases, plaintiffs seeking to invalidate participation policies for transgender athletes will need better, more concrete arguments. Parties cannot simply grasp at straws and hope for a favorable result from a sympathetic judge.
• Given the lack of clarity and uniformity of laws surrounding transgender participation in sports, recipients should consult with their legal counsel about how to move forward. When state and federal law seem to conflict, but a court has not yet addressed the conflict, legal counsel and other leaders will need to determine the level of risk or liability with which they are comfortable. This is not a decision an athletic director or Title IX Coordinator should make unilaterally.
• Because there are relatively few trans athletes at the highest levels of competition, there isn’t a lot of data to inform law and policy choices. Even when federal regulations are released, it is expected that states and private parties will litigate against the regulations, meaning that the ultimate showdown on this issue will likely end up with the Supreme Court someday.

[1] 21-1365-cv (2d Cir., December 16, 2022) at 17.

[2] Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

[3] Bostock v. Clayton County, 140 S. Ct. 1731 (2020).