Calling on the Law to Evolve: Trans-inclusive Policies and Sport

The verdict is in. On December 16, 2022, the United States Court of Appeals for the Second Circuit (the “Court”) dismissed the claims of four female, cisgender high-school students challenging the Connecticut Interscholastic Athletic Conference’s (the “CIAC”)[1] trans-inclusive Transgender Participation Policy (the “Policy”).[2] The Policy allows transgender high-school students to participate in gender specific sports consistent with their gender identity if different from “the gender listed on their official birth certificates.”[3] The plaintiff-appellants, Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti (the “Plaintiffs”), alleged that the Policy disproportionally disadvantaged cisgender girls as compared to boys and deprived them of a fair shot at statewide titles in track and field.[4]

Affirming the district court’s decision in his 29-page judgement, Justice Chin of the Court set aside the Plaintiffs’ appeal which argued that the Policy violates Title IX,[5] which protects people from discrimination based on sex in education programs or activities. The Plaintiffs argued that because of the Policy, female-born students have fewer opportunities for victory, public recognition, athletic scholarships, and future employment than those students participating as transgender females in girls’ high-school athletic events. Specifically, the Plaintiffs requested damages and two injunctions—they requested an injunction against future enforcement of the Policy and two, an injunction requiring the CIAC and its member schools to remove the track event records achieved by two transgender girls, Andraya Yearwood and Thania Edwards. By doing so, this would result in (1) Mitchell finishing first instead of second in four championship races, (2) Smith finishing second instead of third in one championship race, and (3) Soule and Nicoletti both advancing to the next level of competition in their respective events.

The Court remained unpersuaded by the Plaintiffs’ arguments. To begin, the Plaintiffs lacked “standing” to seek an injunction to rewrite the records. A plaintiff asserting standing must establish that they have suffered an injury in fact, the injury is fairly traceable to the alleged action of the defendant, and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favourable decision.[6] Claimed future injury must be “certainly impending” and allegations of “possible future injury are not sufficient [emphasis added].”[7]

The Plaintiffs argued that the Policy deprived them of “a chance to be champions” and that CIAC’s current records perpetuate this past injury as the records fail to credit female achievements, and athletes like the Plaintiffs feel “erased.”[8] However, the Court stated that the Plaintiffs have not alleged a cognizable deprivation as all four Plaintiffs competed for state titles in different events, and were indeed “champions” when they finished first, even sometimes when competing against Yearwood and Miller.[9] Justice Chin further stated that a ruling from the Court would give Plaintiffs nothing more than “psychic satisfaction,” which is not an acceptable threshold to meet redressability.

Second, the Plaintiffs argued that current records could affect their future employment opportunities and that modifying the records will provide redress to this harm. The Court disagreed stating that allegations of possible future injury are insufficient to satisfy injury in fact. While the Plaintiffs asserted that 94% of female business executives have participated and recorded achievements in interscholastic sports, the Court found that the current records show impressive achievements in high school athletics by the Plaintiffs; the mere fact that athletic experience may play a factor for prospective employers in hiring does not show that Plaintiffs’ future employment opportunities are harmed by the current records.[10] The Plaintiffs only speculated as to how prospective employers will exercise discretion in hiring, and speculation is insufficient to show injury in fact. As a result, the Plaintiffs’ two theories of standing failed to establish both injury in fact and redressability.

Additionally, the Plaintiffs’ claims for monetary relief were barred under caselaw.[11] Private damage actions under Title IX are available where recipients of federal funding, here being the CIAC and its members schools, are provided adequate notice that they could be liable for the conduct at issue under Title IX.[12] Having failed to provide adequate notice to the CIAC and its member schools that the Policy violated Title IX, the Plaintiffs’ claims for damages were also dismissed. Based on failure to establish standing and to provide adequate notice to the defendants, the Court dismissed this case and affirmed the district court’s decision.

Although this case largely focussed on whether the Plaintiffs had standing to bring forth the suit in the first place, I anticipate that trans-inclusive policies in sport will be seeing much more debate and litigation in courts these coming years. In British Columbia (“BC”), for example, policy under BC School Sports provides that any athlete has the right to participate in the sport that corresponds with their gender identity. A progressive province like BC encourages young transgender athletes to participate in sports, but these policies may be met with contention for those who advocate for fair competition in sport.

Stay tuned as we follow this case and its potential elevation to the Supreme Court of the United States. If successful, the lawsuit would require athletes in Connecticut to compete based on their birth sex in high schools, could result in changes to state record books, and would have Connecticut joining several other states who promote exclusive transgender policies in schools, outrightly denying transgender athletes from competing against the gender they identify with.

[1] The CIAC is a private, not-for-profit organization governing interscholastic sports in Connecticut. See CIAC Sports, “About CIAC” (2023), online: <;.

[2] Selina Soule et al v Connecticut Association of Schools et al, 21-1365-cv (F.4d) 1 (7th Cir 2022).

[3] Ibid at 3.

[4] Ibid at 2, 6.

[5] Title IX of the Education Amendments of 1972, 20 USC §1681 et seq (1972) [Title IX].

[6] Supra note 2 at 12.

[7] Ibid at 13.

[8] Ibid.

[9] Ibid at 14.

[10] Ibid at 18.

[11] See Pennhurst State School & Hospital v Halderman, 451 US 1 (1981).

[12] Supra note 2 at 22.

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