Dive Brief:
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The 2nd U.S. Circuit Court of Appeals last week upheld a Connecticut policy allowing transgender athletes to play on teams aligning with their gender identities, setting up a possible U.S. Supreme Court showdown on Title IX.
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The plaintiffs are families of four cisgender female students who sued the Connecticut Association of Schools, the Connecticut Athletic Conference, multiple local school boards and transgender students Andraya Yearwood and Terry Miller, claiming that transgender students are "displacing girls" through an alleged competitive advantage.
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The 2nd Circuit upheld a March 2021 district court decision against the plaintiffs which, if successfully appealed, could reach the Supreme Court and set a Title IX policy on transgender rights that would be much more difficult to walk back than the revolving door of regulations from the U.S. Department of Education.
Dive Insight:
The plaintiffs are now considering all their legal options, including appeal, according to the Alliance Defending Freedom, or ADF, which represents the families challenging the Connecticut policy.
The lawsuit is another iteration of a case already filed with and resolved by the U.S. Department of Education’s Office for Civil Rights in 2020. That OCR case against the Connecticut school boards had been used to set official policy prohibiting transgender students from participating in sports teams aligning with their gender identities under former President Donald Trump's administration and Betsy DeVos' Education Department. However, the Biden administration overturned that policy in favor of transgender student athletes.
The latest decision on the Connecticut case comes as the Education Department is expected to release regulations around transgender student athletic participation. The department purposely separated such regulations from the TItle IX proposals it announced in June, a move that legal experts suggest was made to insulate the Title IX proposals from legal challenges.
In the meantime, however, an increasing number of states have passed transgender athlete bans. According to the ADF, 18 states have enacted such laws.
Legal experts have speculated that a Title IX case addressing the issue could reach the Supreme Court soon.
They further say it's possible that, despite now tilting conservative, the bench will decide gender identity and sexual orientation are protected under Title IX — considering not doing so would challenge its own precedent set in 2020 by Bostock v. Clayton County. That case held that LGBTQ individuals are protected against sex discrimination under employment law.
