Soule v. Conn. Ass'n of Sch.

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, 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,andANDRAYA YEARWOOD; THANIA EDWARDS on behalf of her daughter, T.M.;CONNECTICUT COMMISSION ON HUMAN RIGHTS, Intervenors.

Case No. 3:20-cv-00201 (RNC)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

April 25, 2021

RULING AND ORDER

This case involves a challenge to the transgender participation policy of the Connecticut Interscholastic Athletic Conference ("CIAC"), the governing body for interscholastic athletics in Connecticut, which permits high school students to participate in sex-segregated sports consistent with their gender identity.¹ Plaintiffs claim that the CIAC policy puts non-transgender girls at a competitive disadvantage in girls' track and, as a result, denies them rights guaranteed by Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and implementing regulations, which require that if a school provides athletic programs or opportunities segregated by sex, it must do so in a manner that "[p]rovides equal athletic opportunity for members of both sexes." 34 C.F.R. §106.41(c). Defendants have jointly moved to dismiss the action on numerous grounds. For reasons discussed below, I conclude that the plaintiffs' challenge to the CIAC policy is not justiciable at this time and their claims for monetary relief are barred and dismiss the action on this basis without addressing the other grounds raised in the joint motion.

I.

In February 2020, plaintiffs Selina Soule and Chelsea Mitchell, then high school seniors, and Alanna Smith, then a high school sophomore, brought this action seeking a preliminaryinjunction to prevent transgender girls from competing in events scheduled to take place during the 2020 Spring Outdoor Track season. Plaintiffs alleged that without a preliminary injunction, they would continue to face unfair competition by two transgender students, Andraya Yearwood and Terry Miller, then high school seniors. Plaintiffs claimed that by permitting "male-bodied athletes" -- defined as "individuals with an XY genotype" -- to compete in girls' track, the defendants were denying them an opportunity to compete for places on the victory podium in violation of Title IX and 34 C.F.R. § 106.41(c). The issue raised by the plaintiffs is one of first impression.²

Prior to bringing this action, the plaintiffs had filed a complaint with the U.S. Department of Education's Office of Civil Rights ("OCR"). OCR initiated an investigation in response to the complaint but took no action to prevent Yearwood and Miller from competing in the 2020 Spring Track Season, so the plaintiffs filed this suit. Explaining the need for immediate relief, the motion stated:

Plaintiffs Soule and Mitchell are seniors in high school, and the brief remainder of this academic year contains the final track and field competitions of their high school athletic careers. The Spring track season begins in March, with the first interscholastic meet subject to the CIACPolicy scheduled to occur as soon as April 4, 2020. Absent immediate injunctive relief from this Court, the irreparable harm they will suffer under the continuing operation of the Defendants' policy and its enforcement will leave their concluding interscholastic athletics season marred and their personal experience substantially injured. Though Plaintiff Alanna Smith is a sophomore, her interests are no less immediately impacted or properly honored with immediate equitable relief, as the profound interests in and experience of high school athletics are concurrently fleeting and formative, and each season of eminent value and importance.

In addition to CIAC, the complaint named as defendants the school boards for the three high schools attended by the plaintiffs (Glastonbury, Canton, and Danbury) and the two high schools attended by the transgender students (Bloomfield and Cromwell). All five schools are members of CIAC and, as such, must abide by its transgender participation policy.

Soon after the complaint was filed, Yearwood, Miller, and the Connecticut Commission on Human Rights and Opportunities ("CHRO") filed motions to intervene, which the plaintiffs opposed. Before the plaintiffs' motion for a preliminary injunction could be heard, Connecticut declared a public health emergency in response to the Covid-19 pandemic. Schools and nonessential businesses were closed across the state, and interscholastic athletic competition was suspended indefinitely. Plaintiffs subsequently filed an amended complaint adding Ashley Nicoletti, then a sophomore, as a plaintiff. They also renewed their motion for an expedited hearing, which was opposed by thedefendants and proposed intervenors on the ground that the 2020 Spring Track season was likely to be cancelled in its entirety.

Following oral argument, the motions to intervene were granted, either as a matter of right or permissively, thereby enabling Yearwood, Miller, and the CHRO to participate in this litigation as additional defendants along with the CIAC and the five school boards. The plaintiffs' motion for expedited treatment was denied because of Covid-19, which would prevent resumption of interscholastic athletic competition for the rest of the academic year. Further proceedings in this case were then stayed by agreement while the plaintiffs sought appellate review of a ruling denying a recusal motion.³ After the stay was lifted, defendants filed the pending motion to dismiss, which has been fully briefed and argued.

II.

Plaintiffs' second amended complaint alleges that CIAC's transgender participation policy

is now regularly resulting in boys displacing girls in competitive track events in Connecticut -- excluding specific and identifiable girls including Plaintiffs from honors, opportunities to compete at higher levels, and public recognition critical to college recruiting andscholarship opportunities that should go to these outstanding female athletes.

As a result, in scholastic track competition in Connecticut, more boys than girls are experiencing victory and gaining the advantages that follow, even though postseason competition is nominally designed to ensure that equal numbers of boys and girls advance to higher levels of competition. In the state of Connecticut, students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born make.

Plaintiffs claim that

This reality is discrimination against girls that directly violates the requirements of Title IX: "Treating girls differently regarding a matter so fundamental to the experience of sports - the chance to be champions - is inconsistent with Title IX's mandate of equal opportunity for both sexes." McCormick ex rel. McCormick v. Sch. Dist. Of Mamaroneck, 370 F.3d 275, 295 (2d Cir. 2004).

Plaintiffs request:

A declaration that Defendants have violated Title IX by failing to provide competitive opportunities that effectively accommodate the abilities of girls;

A declaration that Defendants have violated Title IX by failing to provide equal treatment, benefits, and opportunities for girls in athletic competition;

An injunction prohibiting all Defendants, in interscholastic competitions sponsored, organized, or participated in by the Defendants or any of them, from permitting males -- individuals with an XY genotype -- from participating in events that are designated for girls, women, or females;

An injunction requiring all Defendants to correct any and all records, public and non-public, to remove male athletes from any record or recognition purporting to record times, victories, or qualifications for elite competitionsdesignated for girls or women, and conversely to correctly give credit and/or titles to female athletes who would have received such credit and/or titles but for the participation of males in such competition;

An injunction requiring all Defendants to correct any and all records, public or non-public, to remove times achieved by male athletes from any records purporting to record times achieved by girls or women;

An award of nominal and compensatory damages and other monetary relief as permitted by law; [and]

An award of Plaintiffs' reasonable attorneys' fees and expenses, as authorized by 42 U.S.C. § 1988.

III.

A.

In the joint motion to dismiss, the defendants first contend that the plaintiffs lack standing to seek an injunction enjoining enforcement of the CIAC policy. Standing refers to the personal stake a plaintiff must have in a disputed issue in order to be able to obtain a judicial determination of the issue in federal court. See Warth v. Seldin, 422 U.S. 490, 498 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of a particular issue."). Under Article III of the United States Constitution, the judicial power of the federal courts is limited to adjudicating "cases" and "controversies." The law of standing implements this limitation by requiring a plaintiff to demonstrate that she requires judicial relief in order to redress a legally cognizable injury to her. See Allen v.Wright, 468 U.S. 737, 751 (1984) (noting that, to have standing under Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct...