A federal appeals court has reinstated a challenge to Connecticut’s policy of allowing transgender students to compete in girls’ high school sports, two months after a three-judge panel upheld the rules.
The 2nd U.S. Circuit Court of Appeals, based in New York City, said the full court of 13 judges will rehear the appeal of four female runners who said they were unfairly forced to race against transgender athletes with male physiological advantages in high school competitions.
The court revealed on Monday that a majority of its judges voted in favor of rehearing the appeal – a rare move. The court did not say why it voted to rehear the case, and none of the parties to the lawsuit requested a rehearing.
“Scheduling information will be forthcoming,” according to the court order.
As CBN News reported in December, a three-judge panel of that 2nd Circuit Court upheld a lower court judge’s dismissal of a lawsuit challenging the policy. The panel said the four female athletes lacked standing to sue, in part because their claims that they were deprived of wins, state titles, and athletic scholarship opportunities were allegedly speculative.
“Like the district court, we are unpersuaded, with respect to the claim for an injunction to alter records, that Plaintiffs have established the injury in fact and redressability requirements for standing; both fail for reasons of speculation,” the 2nd Circuit judges initially wrote.
The court came to that conclusion despite the fact that two transgender athletes, biologically born as males, broke 17 girls’ track records and took 15 women’s state track championship titles, according to the lawsuit.
The four track athletes Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti, and their mothers, represented by attorneys with the nonprofit Alliance Defending Freedom (ADF), had sought injunctions to bar enforcement of the state policy on transgender athletes, to remove the records set by the two trans athletes, and included a request for monetary damages.
In a statement, ADF Senior Counsel Christiana Kiefer said they were pleased the 2nd Circuit has decided to rehear this important case and urged the court to protect women’s athletic opportunities.
“Selina, Chelsea, Alanna, and Ashley—like all female athletes—deserve access to fair competition,” Kiefer said. “Eighteen states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports.”
“Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics,” she added.
The Connecticut Interscholastic Athletic Council had argued its policy is designed to comply with a state law that requires all high school students be treated according to their gender identity. It also said the policy is in accordance with Title IX, the federal law that protects girls’ access to equal educational opportunities, including in athletics.
The American Civil Liberties Union defended Terry Miller and Andraya Yearwood, the two transgender athletes at the center of the lawsuit.
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A district court previously threw out the four girls’ lawsuit claiming that it was moot since all of the athletes have since graduated from high school.
In arguments before a federal judge in Connecticut in February 2021, Roger Brooks, another lawyer for the Alliance Defending Freedom, said Title IX guarantees girls “equal quality” of competition, which he said is denied by having to race people with what he described as inherent physiological advantages.
Brooks said the transgender sprinters improperly won 15 championship races between 2017 and 2020 and cost girls the opportunity to advance to other races 85 times.
As CBN News reported in February of 2021, President Joe Biden’s Department of Justice also withdrew U.S. support for the girls’ lawsuit.
While initially backed by the Trump administration under former U.S. Attorney General Bill Barr, the Biden administration abandoned the case.
The female plaintiffs competed directly against the transgender sprinters, almost always losing to Miller and usually finishing behind Yearwood. One of the plaintiffs, Chelsea Mitchell of Canton High School, finished third in the 2019 state championship in the girls’ 55-meter indoor track competition behind Miller and Yearwood.
As CBN News reported in May of 2021, Mitchell opened up about competing against these transgender athletes who are biological males. She called it “devastating.”
In an editorial published by USA Today at the time, she expressed how crushing it was to lose “four women’s state championship titles, two all-New England awards, and numerous other spots on the podium to male runners.”
“That’s a devastating experience,” Mitchell wrote of competing against the biological males. “It tells me that I’m not good enough; that my body isn’t good enough; and that no matter how hard I work, I am unlikely to succeed because I’m a woman.”