A federal judge in Hartford has refused to dismiss a groundbreaking lawsuit by female track and field athletes who are challenging what they call an unfair and discriminatory state policy that required them to compete at a disadvantage against competitors born as biological males.
U.S. District Court Robert N. Chatigny released the decision Tuesday as the polls opened on an election that, at times, highlighted sharp differences of opinion as questions about whether athlete’s born as men should be allowed to participate in women’s sports became part of campaign debate.
The decision means the suit — dismissed once before, but reinstated by a federal appeals court — will proceed. Both sides are expected to argue in coming months that they are entitled to protection under a federal civil rights law known as Title IX, which prohibits sex-based discrimination in federally funded education programs.
“This case presents a direct conflict between two interests protected by Title IX: the interest in providing fair competition for biological females, which has long been recognized as a significant governmental interest under Title IX, and the interest in providing transgender girls with opportunities to participate in girls’ sports, which is now protected by a Connecticut state statute,” Chatigny wrote.
A lawyer familiar with the case said its resolution could come down to a decision on “whose rights trump the other’s.”
Lawyers representing parties to the case were not immediately available to discuss it.
The suit challenges a decade-old policy by the Connecticut Interscholastic Athletic Conference, governing board of high school athletics, permitting high school students to participate in school-sponsored athletics consistent with the gender identity established in their school records.
The four plaintiffs, described by the appeals court as “non-transgender girls”, challenged the policy, complaining that it violates that portion of Title IX credited with expanding women’s athletics by requiring that they receive financing and opportunity equivalent to that given their male counterparts.
Connecticut high school athletes from left, Alanna Smith, Danbury High School sophomore; Chelsea Mitchell, Canton High School senior; and Selina Soule, Glastonbury High School senior, stand for a portrait after the conclusion of a press conference at the state Capitol Wednesday, Feb. 12, 2020, in downtown Hartford. The families of high school athletes Selina Soule, Alanna Smith and Chelsea Mitchell filed a federal lawsuit against the Connecticut Association of Schools and multiple school districts alleging discrimination. The athletes say they lost out on top finishes and possible scholarship opportunities because a statewide policy allows transgender athletes to compete against cisgender girls.
In addition to the CIAC, they are suing five school districts. Two trans athletes named in the suit have been allowed to intervene in the case, as has the state Commission on Human Rights and Opportunities and the U.S. Department of Education.
The four young women competed against the transgender athletes in high school track meets in 2017, 2018 and 2019.
Although the four did not always lose, they claim they lost important races because the transgender athletes had a “physiological athletic advantage.”
The effect of the allegedly unfair competition was to block the four from progressing to higher levels of competition, such as final heats in championship competitions, and, they said, it hurt their chances to compete in college.
The four are seeking financial compensation from the CIAC as well as a court order requiring the CIAC to remove the names of transgender athletes from state athletic records and reranking titles and placements of non-transgender athletes.
Controversies over transgender athletes participating in high school and college women’s sports have erupted around the country, but they are relatively new and none similar to the Connecticut case have proceeded as far in court. At times in his 55-page decision Chatigny acknowledged that “there is little guidance” in existing law for courts, like him, seeking to balance the conflicting interests in the case.
Based on the evidence before him, Chatigny said the four female athletes argued “plausibly” that failure to “provide them with sex-separated competition deprived them of high-quality competitive opportunities” and “in effect, decreased the number of competitive opportunities available to female athletes.”
But, Chatigny also noted that the CIAC and towns named in the suit argued that they were legally required by the Title IX law to allow the transgender athletes to compete in order to avoid discriminating against them based on their interpretation of the term “sex” in the law.
The athletic body and towns argue that the Title IX definition of sex “encompasses gender identity and thus protects transgender girls as well as biological girls.” The four female athletes contend that the term has a plain meaning, one that refers solely to immutable biological characteristics relating to reproduction.
Chatigny wrote that when Title IX was enacted in 1972, the commonly accepted definition of sex was that of immutable biology. But he said that, based on his review of relatively new federal appellate law, which is subject to further judicial review, he “assumes” that discrimination on the basis of transgender status violates of Title IX.
Since both sides in the suit have plausible arguments that they are protected by Title IX’s anti discrimination provisions, Chatigny said a means of balancing the conflicting rights needs to be devised. To do that, he said the parties to the case must first create an evidentiary record based on applicable law and the record of competition.
“In sum … courts engage in a fact-specific analysis that balances the interests of the parties and the public,” he wrote. “This balancing requires an adequately developed record. As no such record exists here, it would be premature to attempt to conduct such a balancing at this time.”
Chatigny had previously dismissed the suit on procedural grounds in April 2023. He said, among other things, that there was no longer a dispute to resolve because the transgender athletes had graduated from high school.
The full U.S. Circuit Court of Appeals for the Second Circuit, in a decision that included seven concurring and dissenting opinions, reversed Chatigny a year ago. It said the the four high school girls had argued persuasively that they had “a concrete, particularized, and actual injury’ that could be “redressable by monetary damages and an injunction ordering Defendants to alter certain athletic records.”
