In an opinion on Friday (in Soule v. Connecticut Association of Schools), a Second Circuit panel ruled against four female athletes in Connecticut who alleged that a policy that allowed boys who identified as girls to compete against them in track events violated Title IX. The legal issues in the case are complicated—e.g., issues of injury in fact and redressability for purposes of standing, notice requirement under Pennhurst doctrine for private damages action under Title IX. But what is blatant is the panel’s adoption of transgender rhetoric and its unjust imputation of that rhetoric to plaintiffs.
Nowhere in its opinion does the panel—composed, as it happens, of Obama and Biden appointees—directly state or acknowledge that the athletes whose participation the plaintiffs complain of are males (or, if you need the redundancy to understand what a male is, biological males). On the contrary, the panel states that Andraya Yearwood and Terry Miller are “both girls who are transgender.” Surely lots of Americans would think that “girls who are transgender” are girls who identify as male.
The panel misdescribes Yearwood and Miller even as it purports (as it must at the motion-to-dismiss stage) to take all material facts alleged in plaintiffs’ complaint to be true and to draw all reasonable inferences in plaintiffs’ favor. The panel even contends that plaintiffs “alleged that the Policy forced them to compete against female athletes who are transgender.” But plaintiffs’ complaint clearly identifies Yearwood and Miller as “male athlete[s]” (Complaint, ¶¶ 14, 15), and it challenges the policy that “is permitting boys who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identify.” (Complaint, ¶ 2.)
The panel also described plaintiffs as “four female athletes who are cisgender.” But the complaint identifies them as “high school girls” and never embraces the gender ideology that the term cisgender connotes.
On the merits, I’m also perplexed by how the panel, if it were really drawing all reasonable inferences in plaintiffs’ favor, could conclude that plaintiffs “simply have not been deprived of a ‘chance to be champions’” and that they “have not shown that their employment prospects are likely to be any different” if the records of championship races were amended.