Courtroom, U.S. Second Circuit Court of Appeals (Photo Credit: Library of Congress/U.S. Courts)
NEW YORK | A lawsuit filed by anti-transgender activists on behalf of four women sprinters that’s already been tossed out by two federal judges is once again getting a hearing on its potential path to the Supreme Court.
Attorneys from the Alliance Defending Freedom, a conservative Christian legal firm labeled an extremist hate group by the Southern Poverty Law Center, made oral arguments on June 6 before the full U.S. Second Circuit Court of Appeals in New York City.
They’re asking for the right to sue a Connecticut state agency and several high schools over a policy that allows trans student-athletes to compete with cisgender students according to their authentic gender identity.
The ADF represents four cisgender women who competed against trans athletes as runners in high school: 24-year-old Chelsea Mitchell and 20-year-old Selina Soule, as well as Alanna Smith and Ashley Nicolleti, who are both 19.
“All we need to decide today is whether they get into the courthouse door,” ADF lawyer John Bursch told the court, according to ABC News. The judges seemed unconvinced.
“It is a clear violation when a school or school district knowingly lets sexual discrimination proceed,” said Judge Denny Chin. “I don’t think we can say that here.”
An attorney for the state agency argued the athletes have not alleged any concrete or imminent harm.
“Nothing about track results would affect the plaintiffs’ life prospects,” said Peter Murphy, the lawyer for the Connecticut Interscholastic Athletic Conference, whose trans inclusive policy has stood for a decade.
“Is there an injury in fact that you see on this complaint by money damages, if money damages is available?” asked Judge Alison Nathan.
“No,” said Murphy. “The plaintiffs are alleging they ran a race and lost, and they don’t like the rules.”
The ADF lawsuit specifically names two transgender former student-athletes, Andraya Yearwood and Terry Miller, labeling them “biological males” — a term federal Judge Robert Chatigny ordered the ADF lawyers to avoid using when he was hearing the case in 2020. Chatigny ruled in 2021 that the ADF’s request for an injunction blocking the enforcement of the CIAC policy was “moot” because the athletes named as defendants were no longer high school students, and the plaintiffs did not identify any other transgender girls that were likely to compete against them the following season.
A judge on the Second Circuit affirmed Chatigny’s ruling in December, as the Los Angeles Blade reported, but in February, the full federal appeals court agreed to re-hear the ADF’s appeal.
The centerpiece of the ADF’s lawsuit is to claim Connecticut’s trans-inclusive policy violates Title IX, the law that prohibits educational institutions that receive federal funding from discriminating against students on the basis of sex. In April, the Biden administration unveiled a proposal to expand Title IX to include protections for transgender students and eliminate broad bans that prevent them from competing in school sports, such as the one passed by the Republican-controlled House of Representatives in April, but the proposal drew mixed reactions.
Title IX historically has been used to ensure equal funding and opportunities for all girls and women, given that their male counterparts still receive greater scholarships and athletic opportunities to this day. The ADF’s central goal, Jezebel reported last summer, is to turn Title IX into a weapon cisgender girls and women can use against those who are trans.
Even though Mitchell finished first, defeating Miller and another cisgender runner in 2020, the ADF argues that when Mitchell placed third behind Miller and Yearwood in 2019, that loss caused Mitchell “irreparable harm.”
Her lawyers claim that impacted Mitchell’s college acceptances and “employment opportunities.” Yet Mitchell and at least two of the other cis women plaintiffs received scholarships to run track in college and at least three are currently part of NCAA Division I track and field programs.
Miller and Yearwood were not offered athletic scholarships. “As a result of this whole process, they’re not competing in sports at all,” said American Civil Liberties Union attorney Joshua Block, who represents the trans women.
“The allegations in the complaint don’t come anywhere close to showing an actual denial of equal athletic opportunity,” Block successfully argued in September. “Plaintiffs’ complete athletic records show that they defeated Andraya and Terry on multiple occasions and amassed an impressive collection of first-place trophies in the process. The complaint is filled with hypotheticals of a dystopia where cisgender girls disappear from the victory podium but a complaint requires allegations of facts. The races were run under the rules that were in place at the time.”
In the one and only race in which Nicoletti competed against Miller, she finished dead last.
Since 2020, at least 21 states have enacted laws or policies that ban transgender athletes from playing on school sports teams with women and girls, according to the Movement Advancement Project.
Those are among the nearly 500 anti-LGBTQ+ bills passed and enacted across the country, including legislation or policies restricting gender-affirming care for minors, and now even trans adults in some states.
A recent landmark ruling by the U.S. Supreme Court may figure into whether the ADF ultimately wins the right to sue. In April, the justices rejected West Virginia’s emergency appeal of an appellate court’s decision to block the state from enforcing an anti-trans youth sports ban against a 12-year-old trans girl, as the Los Angeles Blade reported.
Court observers said while that decision did not set a legal precedent such as in the Bostock case, it did signal that the High Court is not ready to quickly approve discrimination against trans Americans. The West Virginia case marked the first time the Supreme Court has weighed-in on matters involving the inclusion of trans youth in sports.
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