Soule v. Conn. Ass'n of Sch.

90 F.4th 34

Selina SOULE, a minor, by Bianca Stanescu, her mother;Chelsea Mitchell, a minor, by Christina Mitchell,her mother; Alanna Smith, a minor,by Cheryl Radachowsky, her mother;Ashley Nicoletti, a minor,by Jennifer Nicoletti, her mother, Plaintiffs-Appellants, v. CONNECTICUT ASSOCIATION OF SCHOOLS, INC.d/b/a Connecticut Interscholastic Athletic Conference;Bloomfield Public Schools Board of Education;Cromwell Public Schools Board of Education;Glastonbury Public Schools Board of Education;Canton Public Schools Board of Education;Danbury Public Schools Board of Education, Defendants-Appellees,Andraya Yearwood; Thania Edwards, on behalf of her daughter, T.M.;Commission on Human Rights and Opportunities, Intervenor-Defendants-Appellees.

No. 21-1365

August Term 2022

United States Court of Appeals, Second Circuit

Argued en banc: June 6, 2023

Decided: December 15, 2023

Appeal from the United States District Court for the District of Connecticut. No. 20-cv-201, Robert N. Chatigny, Judge.

John J. Bursch (Christiana M. Kiefer, Roger G. Brooks, Cody S. Barnett, Rory T. Gray, on the brief), Alliance Defending Freedom, Washington, DC, for Plaintiffs-Appellants.

Peter J. Murphy (Linda L. Yoder, on the brief), Shipman & Goodwin LLP, Hartford, CT, for Defendants-Appellees Connecticut Association of Schools, Inc. d/b/a Connecticut Interscholastic Athletic Conference; Danbury Public Schools Board of Education.

Johanna G. Zelman, FordHarrison, LLP, Hartford, CT, for Defendants-Appellees Bloomfield Public Schools Board of Education; Cromwell Public Schools Board of Education.

David S. Monastersky, Howd & Ludorf, LLC, Hartford, CT, for Defendants-Appellees Glastonbury Public Schools Board of Education; Canton Public Schools Board of Education.

Joshua A. Block (Ria Tabacco Mar, Elana Bildner, Dan Barrett, on the brief), ACLU Foundation, New York, NY, for Intervenor-Defendants-Appellees Andraya Yearwood; Thania Edwards, on behalf of her daughter, T.M.

Michael E. Roberts, Commission on Human Rights and Opportunities, Hartford, CT, for Intervenor-Defendant-Appellee Commission on Human Rights and Opportunities.

Before: Livingston, Chief Judge, Chin, Lohier, Carney, Sullivan, Bianco, Park, Nardini, Menashi, Lee, Robinson, Pérez, Nathan, Merriam, and Kahn, Circuit Judges.^*

Nathan, Circuit Judge:

Ten years ago, the conference governing interscholastic sports in Connecticut made the decision to permit high school students to participate in school-sponsored athletics consistent with the gender identity established in their school records. This case arose when Plaintiffs, a group of non-transgender girls, challenged that policy in federal court, alleging that it violates Title IX, which prohibits sex discrimination in education. To remedy their alleged injury, Plaintiffs seek monetary damages from the athletic conference and its member school districts, whom they named as Defendants. They also seek an injunction requiring Defendants to alter certain athletic records by removing times of transgender girls and reranking titles and placements of non-transgender girls.

Whether Plaintiffs' Title IX claims have any merit is not before us today. Nor is Plaintiffs' ultimate entitlement to a remedy. We consider only whether Plaintiffs have standing to sue and whether they can, at this stage, seek monetary damages. Although the specific issues before us are narrow and our decision very limited in scope, questions of standing and the availability of monetary damages have broad implications for all manner of civil rights litigation and civil rights plaintiffs. Precedent and principle require that we proceed cautiously before limiting access to courts and remedies.

At core, we conclude that the case should return to the district court for consideration in the first instance of whether Plaintiffs have plausibly stated a claim under Title IX. In doing so, we adopt the outcome advocated for on appeal both by Plaintiffs and by Intervenors, the transgender girls against whom they competed. More specifically, we conclude that further proceedings in the district court are required for two reasons.

First, we hold that Plaintiffs have pled facts sufficient to establish Article III standing at this stage in the litigation. Plaintiffs all personally competed in high school track in Connecticut, and they all identified instances in which they raced against and finished behind one or both Intervenors. Plaintiffs allege—and we must assume—that but for Intervenors' participation in these specific races, they would have placed higher. For the purposes of the standing inquiry, we must also assume that Plaintiffs are correct that allowing Intervenors to compete in those races violated Title IX. With these assumptions in mind, we conclude that Plaintiffs adequately pled a concrete, particularized, and actual injury in fact: the alleged denial of equal athletic opportunity and concomitant loss of publicly recognized titles and placements during track and field competitions in which they participated against and finished behind Intervenors. On the issue of whether Plaintiffs have plausibly stated an injury in fact, all members of the en banc Court agree unanimously that they have.

We further conclude that the alleged injury is plausibly redressable by monetary and injunctive relief. To be sure, no injunction could change the way past races were run. Moreover, ordering Defendants to alter private records or records that do not personally pertain to and impact Plaintiffs would provide Plaintiffs with at most psychic satisfaction, which is not an acceptable Article III remedy. But Plaintiffs plausibly allege that directing Defendants to alter public athletic records related to the particularized injury they allege could at least provide Plaintiffs with the publicly recognized titles and placements they would have received if Intervenors had not competed and finished ahead of Plaintiffs in specific races.

The same would be true if the facts were reversed and an athletic conference decided to categorize transgender girl athletes as boys. If transgender girls alleged that such a policy discriminated against them on the basis of sex and deprived them of publicly recognized titles and placements, they too would have standing to bring a Title IX claim. And they too could seek an injunction altering the existing public records to accurately reflect their alleged athletic achievement. Similarly, Intervenors have an ongoing interest in litigating against any alteration to their public athletic records. The legally cognizable interest Intervenors have in protecting the records of their athletic achievements, including times and placements in races they have run, is materially indistinguishable from the interest Plaintiffs assert.

Defendants argue that an injunction to alter the relevant records would not be fair or appropriate. That may be. But our precedent establishes that the fairness, justice, and novelty of a remedy are equitable considerations that the district court would need to evaluate when exercising its discretion to fashion appropriate injunctive relief, not factors for determining Article III standing.

The second reason for remand to the district court concerns whether Plaintiffs have a private right of action to monetary damages, under a framework originating from the Supreme Court's decision in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Because Congress enacted Title IX pursuant to its Spending Clause power, the statute operates like a contract: in exchange for federal funds, educational institutions agree to comply with Title IX and its implementing regulations. In keeping with the contractual nature of this bargain, if an institution lacked notice of a Title IX violation, private parties generally cannot recover monetary damages for the violation. We do not resolve today whether Plaintiffs or Defendants are correct as to the availability of monetary damages in this case. Rather, consistent with the view espoused by Intervenors, there is good reason here to consider the merits of Plaintiffs' Title IX claims before or in tandem with the question of notice. Courts typically have not analyzed notice as a freestanding issue before reaching the merits of a Title IX claim, and understandably so. The parties here dispute whether, in order to recover monetary damages, Plaintiffs can establish there was adequate notice that allowing transgender girls to compete in girls' sports violated Title IX. This question is difficult to answer without first considering whether allowing transgender girls to compete in girls' sports even violates Title IX to begin with. Yet the district court concluded that it was required to resolve the theoretical availability of monetary damages before reaching the merits of Plaintiffs' Title IX claims. That was error. On remand, we direct the district court to reach the merits before or in tandem with the question of notice.

Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings. On remand, the district court¹ should assess in the first instance whether Plaintiffs' complaint states a claim for a violation of Title IX.

BACKGROUND

I. Factual Allegations²

For the past decade, the Connecticut Interscholastic Athletic Conference (CIAC), a nonprofit organization that governs interscholastic sports in Connecticut, has applied a policy permitting high school students to participate on athletic teams consistent with their established gender identity (the CIAC Policy). The CIAC Policy directs member school districts to determine students' eligibility to participate on teams "based on the gender identification of that student in current school records and daily life activities in the school and community at the time that sports eligibility is determined for a particular season." CIAC By-Laws Article IX, Section B. Students are "not . . . permitted to participate in practices...