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'A critical victory for fairness, equity and inclusion' | Connecticut's transgender athlete policy upheld by appeals court

The three-judge panel of the 2nd U.S. Circuit court of Appeals in New York City ruled the four cisgender athletes lacked standing to sue.

HARTFORD, Conn. — Transgender athletes in Connecticut scored a legal victory on Friday when a federal appeals court dismissed a challenge to a state policy that allows transgender girls to compete in girls' high school sports.

The three-judge panel of the Second U.S. Circuit court of Appeals in New York City upheld a lower court judge’s dismissal of the lawsuit, effectively rejecting arguments by four cisgender runners who said they were unfairly forced to race against transgender athletes.

The panel said the four cisgender athletes lacked standing to sue – in part because their claims that they were deprived of wins, state titles and athletic scholarship opportunities were speculative.

“All four Plaintiffs regularly competed at state track championships as high school athletes, where Plaintiffs had the opportunity to compete for state titles in different events,” the decision said. “And, on numerous occasions, Plaintiffs were indeed 'champions,' finishing first in various events, even sometimes when competing against (transgender athletes).”

The judges added, “Plaintiffs simply have not been deprived of a ‘chance to be champions.’”

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The Connecticut Interscholastic Athletic Council (CIAC) argued its policy is designed to comply with a state law that requires all high school students to be treated according to their gender identity. It also said the policy is in accordance with Title IX, the federal law that allows girls equal educational opportunities, including in athletics.

"The CIAC was confident in its inclusionary policies from the onset of this case. The CIAC is pleased with the decision of the 2nd Circuit Court of Appeals to uphold the lower court's dismissal," CIAC Executive Director Dr. Glenn Lungarini said in a statement to FOX61 Friday.

The American Civil Liberties Union – who defended the two transgender athletes at the center of the lawsuit – said the court’s ruling was a “critical victory for fairness, equity and inclusion.”

“The court rejected the baseless zero-sum arguments presented by the opposition to this policy and ultimately found transgender girls have as much a right to play as cisgender girls under Title IX,” Joshua Book, a lawyer with the ACLU’s LGBTQ & HIV Project, said in a statement. “This critical victory strikes at the heart of political attacks against transgender youth while helping ensure every young person has the right to play.”

"The court got it wrong. Our clients deserve the right to compete in competition fairly and that just does not happen when you allow biological males to come and dominate women's sports," said Christiana Kiefer, senior counsel for Alliance Defending Freedom, which represented the four Connecticut cisgender athletes. "This is all about fairness for female athletes. The whole point of title ix was to protect the integrity of women's sports for girls like my clients and it's disappointing the court failed to see that," she said.

In a phone interview with the Associated Press on Friday, a lawyer for the group said she and other attorneys are considering how to respond, including possibly asking the U.S. Supreme court to review the decision.

“Our clients, like all female athletes across the country, deserve fair competition,” Kiefer said in a phone interview. “That means fair and equal quality of competition, and that just does not happen when you’re forced to compete against biological males in their sports.”

Kiefer added, “The vast majority of the American public recognizes that in order to have fair sports, we have to protect the female category, and I think you’re seeing that trend increasingly with states across the country passing laws to protect women’s sports. ... This is certainly not the end of the road in the fight for fairness for female athletes.”

In a 2020 complaint, four cisgender high school athletes – Selina Soule, Chelsea Mitchell, Alanna Smith and Ashley Nicoletti – argued their athletic opportunities under Title IX were being violated in Connecticut as they were being forced to compete against what they term “biological males.”

The athletes sought to bar the enforcement of the state’s policy on transgender athletes and to remove records set by transgender athletes from the books.

The lawyers for the Alliance Defending Freedom, in arguments before a federal judge in Connecticut in February 2021, argued that the transgender sprinters - Terry Miller and Andraya Yearwood – improperly won 15 championship races between 2017 and 2020 and cost cisgender girls the opportunity to advance to other races 85 times.

The plaintiffs competed directly against them, almost always losing to Miller and usually finishing behind Yearwood. Mitchell finished third in the 2019 state championship in the girls 55-meter indoor track competition behind Miller and Yearwood.

All the athletes have since graduated from high school. They did not compete at a collegiate level.

The Associated Press contributed to this report.

Gaby Molina is a reporter and anchor at FOX61 News. She can be reached at mmolina@fox61.com. Follow her on Facebook, Twitter and Instagram.

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