Connecticut is not like Texas….

The Connecticut version of the UIL takes an approach to transgender athletic competition that is the opposite of how we do things in Texas. The rules in Connecticut permit students to participate in competition based on gender identity. Thus a student whose birth certificate reads “male” can participate in girls’ athletic events in Connecticut. But not in Texas.

Two such athletes did so and achieved state championships in track in 2019. Four girls filed suit, claiming that they were deprived of the “chance to be champions” and were subjected to discrimination by having to compete against athletes who were born male.

The federal district court dismissed the suit (see Daily Dawg May 10, 2021) and now the 2nd Circuit Court of Appeals has affirmed that decision. The court held that the plaintiffs failed to allege the kind of “injury in fact” that is required, and thus they lacked “standing.” All the concerns about diminished employment opportunities were highly speculative.

The court passed on the opportunity to make a definitive ruling about Title IX and transgender athletes. It did not say that Title IX requires a policy like Connecticut’s and it did not say that it prohibits a policy like Texas has. Instead, the court focused on the fact that the plaintiffs were seeking monetary damages.  Plaintiffs can recover damages under Title IX only if “recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” 

Have the feds given clear notice that schools cannot allow transgender students to participate based on gender identity?  Hardly.  In fact, both the Obama and Biden administrations advised that Title IX required a policy like Connecticut’s, and when Trump took office the OCR did not overturn the Obama policy. It only rescinded the guidance on the grounds that the legal issues needed to be considered “more completely.”

So this case doesn’t resolve anything for us in Texas where we prohibit students from participating based on gender identity.  That practice is sure to be challenged, and we will duly report it in the Daily Dawg. 

I have to add one more thing about this case. The students wanted the records from the state championships in 2019 to be amended by removing the victories of the transgender athletes. The court refused to order that and included a lengthy footnote discussing controversies over home run records in baseball: Roger Maris or Babe Ruth or Aaron Judge?  Hank Aaron or Barry Bonds?  The court concluded that this “is not a debate for the courtroom.”

Now there was a Missed Opportunity. The sentence should have read: “This debate is for the BARROOM…not the COURTROOM.”

I’m sensitive to such missed opportunities because of a personal experience I had in Beaumont many years ago. I was representing some basketball players, trying to overturn a UIL decision that barred them from the state playoffs due to some “alleged” UIL violations.  I concluded my argument with “Your Honor, this matter should not be decided in the courtroom.”

I walked away and instantly realized that I had missed it.  I should have said “Your Honor, this matter should not be decided IN the court. It should be decided ON the court.”

I carry the regret to this day. 

The case is Soule v. Connecticut Association of Schools, Inc.  decided by the 2nd Circuit on December 16, 2022. It’s cited as 2022 WL 17724715. 


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