Soule v. Conn. Ass'n of Sch., Inc.

57 F.4th 43

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,andAndraya Yearwood; Thania Edwards, on behalf of her daughter, T.M.; Commission on Human Rights and Opportunities, Intervenor-Defendants-Appellees.^*

Docket No. 21-1365-cv

August Term 2022

United States Court of Appeals, Second Circuit.

Argued: September 29, 2022

Decided: December 16, 2022

Roger G. Brooks (John J. Bursch, Christiana M. Holcomb, and Cody S. Barnett, on the brief), Alliance Defending Freedom, Scottsdale, AZ, Washington, DC, and Ashburn, VA, for Plaintiffs-Appellants.

Peter J. Murphy (Linda L. Yoder, on the brief), Shipman & Goodwin LLP, Hartford, CT, and Johanna G. Zelman, FordHarrison, LLP, Hartford, CT, and David S. Monastersky, Howd & Ludorf, LLC, Hartford, CT, and Michael E. Roberts, Commission on Human Rights and Opportunities, Hartford, CT, for Defendants-Appellees.

Joshua Block (Lindsey Kaley, Galen Sherwin, Elana Bildner, and Dan Barrett, on the brief), ACLU Foundation, New York, NY, and ACLU Foundation of Connecticut, Hartford, CT, for Intervenor-Defendants-Appellees.

Before: Chin, Carney, and Robinson, Circuit Judges.

Chin, Circuit Judge:

Since 2013, defendants-appellees, Connecticut Interscholastic Athletic Conference (the "CIAC") and its member high schools (together, "Defendants"), have followed the "Transgender Participation" Policy (the "Policy"), which permits high school students to compete on gender specific athletic teams consistent with their gender identity if that is different from "the gender listed on their official birth certificates." CIAC By-Laws Article IX, Section B.¹ Plaintiffs-appellants are four female athletes who are cisgender ("Plaintiffs"), and who attended CIAC member high schools and competed in CIAC-sponsored girls’ track events against female athletes who are transgender. Plaintiffs allege that the Policy violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), because the participation of transgender females in girls’ high school athletic events results in "students who are born female" having materially fewer opportunities for victory, public recognition, athletic scholarships, and future employment "than students who are born male." J. App'x at 131 ¶ 4.

To remedy the alleged Title IX violations, Plaintiffs requested damages and two injunctions -- one to enjoin future enforcement of the Policy and one to alter the records of certain prior CIAC-sponsored girls’ track events to remove the records achieved by two transgender girls, who intervened in this action. The district court dismissed the claims on grounds that (1) Plaintiffs’ request to enjoin future enforcement of the Policy was moot; (2) Plaintiffs lacked standing to assert their claim for an injunction to change the record books; and (3) Plaintiffs’ claims for monetary damages were barred under Pennhurst State School & Hospital v. Halderman , 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).²

Like the district court, we are unpersuaded, with respect to the claim for an injunction to alter the records, that Plaintiffs have established the injury in fact and redressability requirements for standing; both fail for reasons of speculation. And because we conclude that the CIAC and its member schools did not have adequate notice that the Policy violates Title IX -- indeed, they had notice to the contrary -- Plaintiffs’ claims for damages must be dismissed.

Accordingly, we AFFIRM the district court's dismissal of Plaintiffs’ claims against the CIAC and its member high schools.

STATEMENT OF THE CASE

The material facts alleged in Plaintiffs’ second amended complaint (the "Complaint") are assumed to be true, and all reasonable inferences are drawn in their favor. See Donoghue v. Bulldog Invs. Gen. P'ship , 696 F.3d 170, 173 (2d Cir. 2012) (Rule 12(b)(1) motion to dismiss); Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009) (Rule 12(b)(6) motion to dismiss).

I. The Facts

Plaintiffs Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, and Selina Soule were -- at the time the Complaint was filed -- Connecticut high school students who each ran track for their high school teams. Each was competitive at the statewide level and trained hard to "shave mere fractions of seconds off [their] race times." J. App'x at 130 ¶ 1. Plaintiffs allege that the Policy forced them to compete against female athletes who are transgender, which deprived them of a fair shot at statewide titles.

The CIAC has applied the Policy since the 2013-2014 school year, permitting high school students to participate on gender specific sports teams consistent with their gender identity. The Policy expresses a commitment "to providing transgender student-athletes with equal opportunities to participate in CIAC athletic programs consistent with their gender identity," and "conclude[s] that it would be fundamentally unjust and contrary to applicable state and federal law to preclude a student from participation on a gender specific sports team that is consistent with the public gender identity of that student for all other purposes." CIAC By-Laws Article IX, Section B. Thus, a student's eligibility to participate on a CIAC gender specific sports team is based on "the gender identification of that student in current school records and daily life activities in the school and community," and the school district's "determin[ation] that the expression of the student's gender identity is bona fide and not for the purpose of gaining an unfair advantage in competitive athletics." Id.

Pursuant to the Policy, intervenor-defendant-appellee Andraya Yearwood participated on the girls’ track team at Cromwell High School for the 2017, 2018, and 2019 indoor and outdoor seasons, and the 2020 indoor season. Also pursuant to the Policy, intervenor-defendant-appellee Terry Miller participated on the girls’ track team at Bloomfield High School for the 2018 outdoor season, the 2019 indoor and outdoor seasons, and the 2020 indoor season. During these track seasons, Yearwood and Miller, both girls who are transgender, competed in CIAC-sponsored track events against girls who are cisgender, including Plaintiffs -- Mitchell, Nicoletti, Smith, and Soule.

In certain races, Yearwood and Miller finished ahead of Plaintiffs. For example:

Mitchell : In the 2019 Class S State Championship Women's Indoor 55-meter; the 2019 State Open Championship Women's Indoor 55-meter; the 2019 Class S State Championship Women's Outdoor 100-meter; and the 2019 Class S State Championship Women's Outdoor 200-meter, Mitchell either placed second after Miller, or third after both Miller and Yearwood.

Nicoletti : In the 2019 Class S State Championship Women's Outdoor 100-meter preliminary race, Miller took second place, Yearwood took third, and Nicoletti took ninth.

Smith : In the 2019 State Open Championship Women's Outdoor 200-meter final, Miller placed first and Smith placed third.

Soule : In the 2019 State Open Championship Women's Indoor 55-meter preliminary race, Miller, Yearwood, and Soule finished first, second, and eighth, respectively.

In other races, Plaintiffs finished ahead of Yearwood and Miller. For example, in the 2019 Class S State Championship Women's Outdoor 100-meter preliminary race, Mitchell, Miller, and Yearwood finished first, second, and third, respectively.

II. The Proceedings Below

In February 2020, Plaintiffs brought this action against the CIAC and its member high schools, alleging that the Policy "is now regularly resulting in boys displacing girls in competitive track events in 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 male"; and "[t]his reality is discrimination against girls that directly violates the requirements of Title IX." J. App'x at 131 ¶¶ 3-5.

Plaintiffs also alleged that the Policy has impacted their individual achievements by depriving them -- as cisgender female athletes -- of certain state championship titles and opportunities to advance to higher levels of statewide competition. Specifically, Plaintiffs alleged that but for the Policy, Mitchell would be the record holder of four additional state champion titles; Nicoletti would have placed seventh in the 2019 Class S State Championship Women's Outdoor 100-meter preliminary race, and advanced to the 100-meter final; Smith would have placed second in the 2019 State Open Championship Women's Outdoor 200-meter final; and Soule would have placed sixth in the 2019 State Open Championship Women's Indoor 55-meter preliminary race, and advanced to the 55-meter final.

Plaintiffs sought a declaration that the Policy violates Title IX by "failing to provide competitive opportunities that effectively accommodate the abilities of girls" and "equal treatment, benefits, and opportunities for girls in athletic competition"; monetary relief for the alleged Title IX violations; an injunction against future enforcement of the Policy; and an injunction requiring the CIAC and its member schools "to remove male athletes from any record ... designated for girls or women" and "to remove times achieved by athletes born male ... from any records purporting to record times achieved by girls or women." J. App'x at 175-76 (prayer for...