A federal court of appeals has upheld a lower court’s decision dismissing a lawsuit brought by a group of female athletes in Connecticut seeking to block the state’s policy allowing transgender girls to compete on female-designated sports teams.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled that discrimination against transgender students violates Title IX, the federal law that prohibits educational institutions receiving federal funding from discrimination on the basis of sex.

The lawsuit stems from a complaint from four cisgender high school athletes — three of whom are currently competing at the collegiate level — alleging that they were denied the right to compete for honors, titles, and potential college scholarships by being forced to compete against two transgender athletes, Terry Miller and Andraya Yearwood, both of whom have since graduated and neither of whom is competing in collegiate athletics.

In the lawsuit, the plaintiffs argued that the Connecticut Interscholastic Athletic Conference’s policy — and five schools that complied with it — violated their rights under Title IX by pitting them against athletes who have an athletic edge on them due to biological characteristics, thus putting them at a competitive disadvantage. The plaintiffs also demanded damages and requested that the court bar the CIAC from enforcing its policy allowing transgender athletes to compete based on their gender identity, and to alter track records of events won by Miller and Yearwood.

The lawsuit had also initially sought to bar Miller and Yearwood from competing in the 2020 spring outdoor track season, but that season was canceled due to COVID-19 pandemic shutdowns.

When it was first filed, the lawsuit was supported by the Trump administration. The U.S. Department of Education launched an investigation into the CIAC’s policy based on a complaint filed with the department’s Office for Civil Rights. Former Education Secretary Betsy DeVos subsequently determined that the policy allowing trans athletes to compete based on gender identity violated Title IX, and threatened to withhold funding from school boards enforcing the CIAC policy. 

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After the plaintiffs filed their lawsuit, the Department of Justice, under then-Attorney General William Barr — filed a statement of interest, claiming the government had a “significant interest in the proper interpretation of Title IX.” But after President Biden took office, his administration withdrew the DOJ’s support for the cisgender athletes’ case. 

In April 2021, a federal judge dismissed the lawsuit on procedural grounds, finding that the plaintiffs had no standing — in part, due to the graduations of Miller and Yearwood, as well as plaintiffs Chelsea Mitchell and Selina Soule — and suffered no threat of harm.

While two of the other plaintiffs, Alanna Smith and Ashley Nicoletti, were juniors at the time of the ruling, there were no other transgender athletes seeking to compete in track and field, and thus, no risk of “harm” by losing to a transgender female.

U.S. District Court Judge Robert Chatigny also noted, at the time, that while the plaintiffs could potentially refile the lawsuit, the idea that Smith or Nicoletti would be forced to compete against a transgender athlete was speculative, as there was no evidence that a transgender female athlete was seeking to compete in track and field, let alone the idea that such an athlete would compete in the exact same events as them, or be able to put up times or marks that would place them in competition with Smith and Nicoletti — both of whom have also graduated from high school while the case awaited a hearing.

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The plaintiffs appealed Chatigny’s ruling, and in September, their lawyers, from the conservative legal group Alliance Defending Freedom, argued before the 2nd Circuit that the lower court had erred in dismissing the lawsuit. 

But the 2nd Circuit upheld that ruling on Dec. 16, finding that the plaintiffs’ claims that they had been deprived of athletic opportunities were unfounded, noting that “on numerous occasions,” the plaintiffs had placed first in various track and field events, even against Miller and Yearwood. 

“Plaintiffs simply have not been deprived of a ‘chance to be champions,'” the three-judge panel wrote in its opinion.

“Like the district court, we are unpersuaded, with respect to the claim for an injunction to alter the records, that Plaintiffs have established the injury in fact and redressability requirements for standing; both fail for reasons of speculation,” the 2nd Circuit panel wrote. “And because we conclude that the CIAC and its member schools did not have adequate notice that the Policy violates Title IX — indeed, they had notice to the contrary — Plaintiffs’ claims for damages must be dismissed.”

The judges also relied on past circuit decisions and a 2020 Supreme Court case in which the it was determined that workplace discrimination against LGBTQ individuals due to their sexual orientation or gender identity is a form of sex-based discrimination under Title VII of the Civil Rights Act.

“Title IX includes language identical to that in Title VII, broadly prohibiting discrimination ‘on the basis of sex,'” the 2nd Circuit judges wrote. “Thus, it cannot be said that the Policy — which prohibits discrimination based on a student’s transgender status by allowing all students to participate on gender specific teams consistent with their gender identity — ‘falls within the scope of Title IX’s proscriptions.”

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Lawyers with the Alliance Defending Freedom — which has become known for its advocacy against laws promoting LGBTQ visibility or expanding LGBTQ rights, as well as “religious freedom” cases demanding exemptions from nondiscrimination laws — say they’re “evaluating all legal options,” including appealing the case to the Supreme Court.

“Our clients — like all female athletes — deserve access to fair competition,” ADF Senior Counsel Christina Kiefer told Politico. “Right now, 18 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.

“ADF remains committed to protecting the future of women’s sports,” she concluded.

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The American Civil Liberties Union, which intervened in the case on behalf of the CIAC, the five school boards named in the lawsuit, and Miller and Yearwood, celebrated the 2nd Circuit’s ruling as a “critical victory for fairness, equality, 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 Block, a senior staff attorney for the ACLU’s LGBTQ & HIV Project. “This critical victory strikes at the heart of political attacks against transgender youth while helping ensure every young person has the right to play.”