by Greg Piper
Years before University of Pennsylvania swimmer Lia Thomas drew national attention to males who identify as women dominating girls’ sports through eligibility via gender identity, male sprinters who identify as girls took first and second in Connecticut high school track championships, prompting a go-nowhere Trump administration investigation and lawsuit by parents of the female athletes they defeated.
Following a circuitous route through the federal courts, with the full 2nd U.S. Circuit Court of Appeals reinstating the case nearly a year ago by overruling the three-judge panel that upheld U.S. District Judge Robert Chatigny’s 2021 ruling, the amended lawsuit by now-adults Selina Soule, Chelsea Mitchell, Alanna Smith and Jennifer Nicoletti cleared a crucial hurdle last week.
The chastened President Clinton nominee Chatigny denied the motion to dismiss by the Connecticut Interscholastic Athletic Conference (CIAC) and member school districts, ruling the amended suit plausibly alleges disparate treatment based on the female athletes’ sex.
He said defendants are potentially liable for discrimination under Title IX and plaintiffs may be able to recover “nominal damages, attorneys’ fees and costs” depending on legal discovery. A docket entry shows the parties will next meet with the judge Dec. 3 in a telephone conference.
The full appeals court disagreed with Chatigny’s original finding that the case was moot after transgender champions Andraya Yearwood and Terry Miller graduated and that failure to correct “past athletic records,” to remove male winners in girls’ sports, was not a legal injury.
It said the girls “adequately pled a concrete, particularized, and actual injury in fact … denial of equal athletic opportunity and concomitant loss of publicly recognized titles and placements” – the plaintiffs want dozens of records corrected – by finishing behind Yearwood and Miller.
It’s an embarrassing reversal for Chatigny, whose removal the girls unsuccessfully sought for “unfair bias” when they appealed his ruling. They cited his order to stop “bullying” Yearwood and Miller by calling them “male” and for allegedly making up his own science on biological sex.
Unlike in 2021, Chatigny’s ruling last week is replete with references to biological sex. He even twice used the phrase “biological males,” which three years earlier he had deemed “needlessly provocative” when applied to Yearwood and Miller.
Lawyers for CIAC and the districts did not respond to queries from Just the News.
Plaintiffs’ lawyer Rachel Rouleau of the Alliance Defending Freedom said CIAC’s transgender policy “degraded each of their accomplishments and scarred their athletic records, irreparably harming each female athlete’s interest in accurate recognition of her athletic achievements,” alluding to the full 2nd Circuit’s rebuke of Chatigny for dismissing the relevance of the records.
“This ruling creates one fewer obstacle for high school girls to face as they pursue their athletic dreams,” Rouleau said in ADF’s statement on the ruling, which comes as the NCAA’s two-year-old transgender eligibility policy – currently under review – faces its biggest test yet.
Several NCAA Mountain West women’s volleyball teams have forfeited matches this season against San Jose State University (SJSU), with the University of Wyoming recently joining Boise State in forfeiting a second match.
The forfeitures appear to be over SJSU player Blaire Fleming, who can spike a ball with potentially dangerous power and is widely reported to be transgender, though neither Fleming nor SJSU has made an official statement about the player’s gender identity. The forfeiture notices by the Wyoming and Boise colleges do not provide an explanation.
Proponents of sex-based sports including San Diego State University’s Turning Point USA chapter swamped SDSU’s Saturday match with SJSU, chanting “no men in women’s sports” and holding a banner that read “Woman = Adult Human Female,” OutKick reported.
An attendee unsuccessfully asked security to remove the protesters, while video shows SDSU Associate Athletic Director of Operations Dave Noll accusing one of the chanters of violating Mountain West guidelines, the Fox-owned sports site said.
SJSU suspended coach Melissa Batie-Smoose, allegedly for protesting Fleming’s inclusion, and team co-captain Brooke Slusser joined a putative class-action lawsuit against the NCAA policy by female athletes, sponsored by the Independent Council on Women’s Sports.
SJSU has not provided an explanation for the suspension, saying only the associate head coach is “not with the team at this time.”
ICONS warned every conference school president in September that playing SJSU with Fleming on the squad would violate Title IX and the 14th Amendment equal protection clause by denying female athletes “equal athletic opportunities and fair and safe competition,” according to a document obtained by the San Francisco Chronicle.
Redacted documents released under the Wyoming Public Records Act show the Wyoming athletes initially voted to play SJSU Oct. 5 but then deadlocked, while OutKick‘s report that Southern Utah forfeited a Sept. 14 game due to Fleming led Wyoming assistant coach Becky Baker to conclude “no way [Fleming] gets to continue playing in the MW.”
Wyoming athletic director Tom Burman nonetheless told a supporter Sept. 27 that “our student-athletes felt safe in previous matches” with Fleming over the past two seasons, and that Fleming – who played women’s volleyball for Coastal Carolina University before South Carolina’s “Save Women’s Sports” law banned males on women’s teams – was “not the best or most dominant hitter” for SJSU.
ICONS is sponsoring another suit filed Wednesday against the Mountain West and SJSU officials by SJSU coach Batie-Smoose and co-captain Slusser and several other female athletes from four other universities. They allege violations of Title IX and the First Amendment and seek an injunction against the trans policy ahead of the Mountain West volleyball tournament Nov. 27.
The basis of Judge Chatigny’s ruling last week was CIAC’s allegedly “dismissive” responses to parents who complained about the transgender policy, which dates to “before 2017,” as Yearwood and then Miller began competing in and dominating girls’ track.
Their first- and second-place finishes in 2019, for example, took a championship from Mitchell and prevented Soule from advancing to “the next stage of competition,” the ruling summarizes.
A CIAC rep told Mitchell’s mother that “further complaints on her part would receive no response and school officials admonished Chelsea herself to stop complaining,” Chatigny wrote.
Defendants conveyed “the dispiriting message that [females’] interests and aspirations as student athletes were less worthy of protection than those of their male counterparts on the boys’ team,” in the context of “a long history of systematic discrimination against women and girls in high school athletics in Connecticut,” as Chatigny paraphrased the allegations.
The now-adult women plausibly alleged the CIAC policy under which Yearwood and Miller competed denied them “high-quality competitive opportunities,” the judge wrote.
Chatigny noted that the Clinton administration, which nominated him, deemed these opportunities relevant to Title IX compliance, and the 2nd Circuit further specified in a 20-year-old New York precedent that equal access to postseason games is relevant.
“The treatment disparity at issue here might well have negatively impacted more girls and teams than did the disparity in McCormick,” that 2004 precedent, through alleged “lost opportunities to participate in postseason competition,” he wrote. The girls may even be able to prove the required “systemic effect” of denying equal opportunity “program-wide.”
Supreme Court and 2nd Circuit precedents, further complicated by Connecticut law protecting trans participation, are each pulling Chatigny in opposite directions, the judge said.
“A strong case can be made” that Congress intended the word “sex” in 1972’s Title IX to mean “the biological division of organisms into either male or female,” but SCOTUS also ruled that transgender employment discrimination is on the basis of sex, he said.
Thomas switched from Penn’s men’s to women’s swim team after hormone therapy.
Chatigny cited rulings on “athletic inclusion” in track competition under the Americans with Disabilities Act, which considers “competitive, administrative, financial, or safety-related” needs as well as “the emotional impact on individual athletes of exclusion or differential treatment.”
Since he must “engage in a fact-specific analysis that balances the interests of the parties and the public” based on a full record, Chatigny ruled the women’s claims are enough at this stage “to support a prima facie case of sex discrimination under Title IX.”
Even if the defendants didn’t show “animus” toward females and the CIAC policy was “facially neutral,” a 2nd Circuit precedent on discrimination in sexual misconduct proceedings does not require animus and the SCOTUS transgender precedent reaffirms it, he said.
“As a result of the defendants’ conduct, the plaintiffs reasonably perceived that the defendants regarded girls’ sports as less worthy of consideration and support than boys’ sports” – a “mindset” the judge called “plausible.”
He also questioned why CIAC didn’t consult with the Trump administration’s Department of Education, which rescinded its predecessor’s transgender guidance, when the girls’ parents complained. They could be monetarily liable if they “deliberately refrained on the assumption” the administration would side with the girls, the judge said.
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Just the News reporter Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education.
Photo “Selina Soule, Chelsea Mitchell, and Alanna Smith” by Alliance Defending Freedom.
