Federal Court Dismisses Challenge to Connecticut’s Trans-Inclusive Student Athletics Policy

Interview with Dan Barrett, legal director, ACLU of Connecticut, conducted by Melinda Tuhus

The state of Connecticut has some of the strongest laws and regulations for the protection of transgender rights in the U.S. Among other things, it protects the rights of transgender youth and in practice, transgender girls, to participate on girls’ sports teams.   

After two cis-gender girls challenged the policy, the ACLU and the ACLU Foundation of Connecticut defended the transgender youth participation policy of the Connecticut Interscholastic Athletic Conference (CIAC) in the case Soule et al v. CT Association of Schools et al, the nation’s first federal court case challenging such a policy.

On Dec. 16, the Second Circuit Court of Appeals upheld the policy, ruling that the claims that cisgender girls were denied opportunities or championships to be moot and unfounded, ultimately ruling they lacked standing to challenge the Athletic Conference policy.  The court also affirmed that discrimination against transgender students violates Title IX, the federal law that prohibits sex discrimination in educational programs. Between The Lines Melinda Tuhus spoke with Dan Barrett, legal director of the ACLU of Connecticut, who explains the ruling and its importance in civil rights law.

DAN BARRETT: The whole lawsuit was deeply unusual and also incredibly vitriolic. What you had in this lawsuit was a group of high school runners who sued some of the schools they ran against because they had to run against my clients.

You had a federal lawsuit over a couple of races in high school. One bunch of runners trying to get a court order forcing my clients out of the race. It was incredibly petty and also unbelievably hurtful. The whole idea here was that had the plaintiffs succeeded, Connecticut high school athletics would have been radically transformed. We’ve had equal access for the better part of a decade now and these plaintiffs decided that a better rule would be to put schools in charge and make them sort of a gender police force determining what a person’s “real gender” is. It was an unbelievably vitriolic theory.

MELINDA TUHUS: Let me play devil’s advocate here for a minute and maybe you can provide more information. But if a transgender girl wants to run in the female division and is biologically a male, it seems like that would come with certain physical advantages, so there could be some concern that it wasn’t a level playing field. Can you address that?

DAN BARRETT: Sure, and starting with the term “biological male.” There’s no such thing. I think the aim of the plaintiffs’ lawsuit was to get the courts to buy into this theory that there is one way to determine gender and that gender is immutable. Neither of those things is true. So you can look at gender from a sociological perspective, from a hormonal perspective, from the endocrine system, from the physical anatomy of a person.

There are many ways of doing it and there’s no one way to say, “This person is male or female.” And that’s because gender identity is the person’s own sense of who they are. And one of the things we want to reinforce in Connecticut is that we don’t want the government to be in charge of telling people who they are. You think of any other context: We don’t let the government tell people they’re not really Jewish or that they’re not really of Hispanic descent. That’s not what the government does and it shouldn’t do that for gender either.

The second is that it’s a generalization to say that anyone who’s transgender is automatically some kind of superior athlete. Just like cisgender people, transgender people come in all shapes and sizes. Those shapes and sizes are not automatically great at athletics or at a particular athletic competition. If you think back to high school athletics, the idea is you show up, you compete, you do your best and you show up as you are.

MELINDA TUHUS: That makes sense. We’re sort of in this age of so much gender fluidity that I think it’s kind of a brave new world for a lot of people, especially people who are not young people and have grown up and lived in a society that has been gender-divided with all the baggage that entails. But it is a different way of looking at it. So, this was a decision of the appeals court. What impact does this ruling have going forward, maybe on other cases or other situations?

DAN BARRETT: Well, for one thing, the most important thing here in Connecticut is that it puts an end to the challenge. CIAC (Connecticut Interscholastic Athletic Conference)’s policy is intact and that means that the winter and spring seasons and every season thereafter, are going to proceed as they have been — on an equal footing welcoming all athletes — which is fantastic.

But more broadly, the decision makes clear a couple of things. One is that it is not the grounds for a federal lawsuit for a plaintiff to march in and announce that they have somehow been wronged because they had to compete against a transgender athlete. That’s not going to do the trick and that’s not correct. So that’s going to be very important going forward.

The second is that, in a different part of the case having to do with the school district defendants, the Second Circuit outlined the law across the land and made clear that a school district makes a pretty good bet when it concludes that federal anti-discrimination statutes include gender identity. That is to say, a school district tends to get the right answer when it protects against discrimination on the basis of gender identity. That also is going to be important throughout the circuit and nationwide.

For more information visit the ACLU of CT at acluct.org.

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