The Courts and the Culture War

Posted: January 11, 2024 / Written by: Elizabeth Wolstein /

En Banc Second Circuit Rules Female Athletes Have Standing To Challenge High School Conference Rule Allowing Participation Of Transgender Girls On Girls Teams

The Second Circuit does not often sit en banc.  But in December 2023, the en banc Court ruled that four female high school athletes have standing to challenge, as a violation of Title IX, their athletic conference’s rules allowing transgender girls (biological boys) to participate in girls’ sports. The Court in Soule v. Connecticut Assoc. of Schools, No. 21-1365, 2023 WL 8656832 (2d Cir. Dec. 15, 2023) (en banc) (slip opinion here), vacated the district court’s order dismissing the case and remanded for the lower court to determine whether plaintiffs state a claim under Title IX and whether money damages are an available remedy.

For the last 10 years, Connecticut’s interscholastic sports governing body, the Connecticut Interscholastic Athletic Conference (CIAC), has had a policy permitting high school students “to participate on athletic teams consistent with their established gender identity.”  Slip Op. at 10.  Plaintiffs are four girls who participated in high school track competitions, including races in which two transgender girls participated.  The two transgender girls, who intervened as defendants, finished ahead of each of the plaintiffs in at least one race.  See id. at 11.  In some cases, the transgender girls’ participation meant that they qualified for the next level of competition while plaintiffs did not.  See id. at 12.

Plaintiffs claimed that by allowing biological males to compete against females the CIAC policy put them at a competitive disadvantage, thereby violating Title IX’s prohibition on sex discrimination by institutions that receive federal funds.  See id. at 12. The complaint sought a declaration that the CIAC policy violates Title IX and an injunction against its enforcement; an injunction requiring amendment of official athletic records to credit plaintiffs with titles they would have received but for the participation of the transgender girls, and to remove the transgender girls’ recorded times; and nominal and compensatory damages.  See id. at 13-14.

The district court granted defendants’ motion to dismiss, concluding that the claim for an injunction against enforcement of the policy was moot because two of the plaintiffs and both the intervenors had graduated from high school and there were no transgender teammates at that point.  See id. at 15.  The district court further held that plaintiffs’ request for an injunction amending defendants’ athletic records was not redressable for standing purposes; and that the claims for money damages were barred since defendants were not on notice of their potential Title IX liability as required by Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).  On appeal, plaintiffs conceded that their claims for an injunction barring enforcement of the CIAC policy were moot, and the Second Circuit panel affirmed largely on the remaining grounds stated by the district court.  In February 2023 the Court granted rehearing en banc, “limited to the issues of injury in fact, redressability, and Pennhurst notice.”  Id. at 16.

As to standing, the en banc Court held that plaintiffs met the two challenged elements of standing, injury-in-fact and redressability.  See id. at 19.  First, plaintiffs pled injury-in-fact by alleging facts constituting a “(1) concrete, (2) particularized, and (3) actual or imminent” harm.  Id. at 20.  Plaintiffs alleged a concrete injury—that they were denied “’equal athletic opportunities and loss of publicly recognized titles and placements in track and field competition, in violation of Title IX.”  Id. at 21.  The impact of the alleged denial of equal opportunity is “measurable, not abstract or speculative,” because plaintiffs do not claim “that they might have won” higher placements if the transgender girls had not competed, “but rather that they certainly would have.”  Id. at 22.  In addition, the injury is particularized because plaintiffs were personally affected by the policy, and is actual because it is alleged to have already occurred. See id. at 23.

In addition, the complaint pled that both forms of the requested relief, money damages and an injunction amending athletic records, could be redressed by a favorable decision.  The defendants did not dispute that nominal and compensatory damages could redress the claimed “violation of a legal right” and loss “suffered by reason of [a] defendant’s wrongful conduct.”  Id. at 25 (cleaned up).  The Court ruled that an injunction to amend official records “could plausibly redress the injury that allegedly resulted from Plaintiffs’ loss of publicly recognized titles and placements in specific races” in which they lost to transgender girls.  Id. at 26.  However, plaintiffs’ standing is limited to seeking alteration of public and not private records, because amending private records would at most afford “’psychic satisfaction,’” which is insufficient to confer standing.  Id. at 33.  The Court held that “equitable considerations”—focused on the claimed unfairness to the intervenors who “haven’t done anything wrong”—and the novelty of the requested injunction, arguments made in opposition by defendants, may go to whether the injunction should be granted but do not go to Article III standing.  Id. at 34-35.

Finally, the district court erred in concluding that it lacked discretion to reach the merits of plaintiffs’ Title IX claims in light of its view that plaintiffs failed to meet Pennhurst’s notice requirement.  See id. at 39. Because “Congress enacted Title IX pursuant to its Spending Clause power,” private damages are only available where the funding recipient knowingly accepts “federally imposed conditions,” which are “in the nature of a contract.”  Id. at 37 (cleaned up).  Under this doctrine, “Pennhurst does not bar private damages where the funding recipient engages in intentional conduct that violates the clear terms of the statute.”  Id. at 38 (cleaned up).  The en banc Court reasoned that the question of adequate notice “was hard to answer without first considering whether the CIAC policy “does indeed violate Title IX” and that the cases do not analyze “notice as a freestanding issue before reaching the merits,” but rather begin with a merits analysis or weave the merits into the question of notice. Id. at 41-42. The Court directed the district court on remand to “consider the merits before or in tandem with” the notice question.  Id. at 43.

In sum, a majority of the en banc Court concluded that plaintiffs have standing to sue for an injunction to amend official public athletic records, while “a different majority” concluded that the district court on remand must determine whether the complaint states a claim for violation of Title IX “before or in tandem with the Pennhurst question” of whether money damages are available.  Id. at 44.  While “a broad majority” agreed that, as both sides had urged, a remand is required “to resolve whether Plaintiffs have stated a claim for a violation of Title IX,” the Court stressed that it is not “in any way” opining on “that highly contested underlying merits question” or on whether plaintiffs are entitled to the injunctive relief they seek.  Id. at 44.

Judge Nathan’s majority opinion was joined in full by Chief Judge Livingston and Judges Sullivan, Bianco, Park, Nardini, and Menashi, and in part by Judges Lohier, Robinson, Lee, Pérez, and Merriam.

There were multiple concurring and dissenting opinions.  Judge Park issued a two-paragraph concurring opinion stressing the Court was “splintered” mainly to the extent individual judges “ventured beyond the questions we took up for en banc review,” and that the separate opinions “do no more than signal the personal view of the authors and joining judges.”  Opinion of Park, J., at 1.  He was joined by Judges Nardini and Menashi.

Judge Menashi issued a concurring opinion, joined by Judge Park, to make three points about the Pennhurst issues. Judge Menashi believed that (i) the district court erred in failing to address whether the CIAC policy was “intentional conduct and therefore not subject to the notice requirement at all;” that (ii) an official policy of an educational institution “always qualifies as intentional conduct” and is therefore not subject to Pennhurst’s notice requirement, as the Fifth, Ninth, and Tenth Circuits have held; and that (iii) even if the Court were to depart from those Circuits’ rulings, the district court erred “in concluding that the CIAC could not have been on notice that the policy violated Title IX.”  Opinion of Menashi, J., at 1.

Judge Nathan, who wrote the majority opinion, also issued a separate concurrence, which Judge Robinson joined.  Judge Nathan stated that the intervenors were accepted as girls by their communities and followed all the rules of the CIAC and, as she also wrote in the majority opinion, “have done nothing wrong.”  Concurring Opinion of Nathan, J., at 2. She offered a hypothetical in which transgender girls were required, under a policy, to compete against fellow biological males to emphasize that if the transgender girls in the hypothetical would have standing to challenge the policy then plaintiffs should have standing in this case, as the majority held they did.  Judge Nathan stated that while she has done her “level best” to put her views on the merits aside, to prevail plaintiffs will have to show that Title IX requires schools to exclude transgender girls from joining girls’ teams, “an interpretation of Title IX that no court has ever adopted.”  Id. at 5.

Judge Lohier concurred in part and dissented in part.  He noted that the majority’s approach to redressability extends equally to other civil rights statutes.  See Opinion of Lohier, J., at 2.  Judge Lohier agreed with Judge Chin’s view, in dissent, that the majority opinion misreads the district court’s understanding of its own discretion and that the lower court simply elected to determine that Pennhurst barred plaintiffs’ monetary claims because that was “a far easier and more straightforward issue” than deciding the merits.  Id. at 3.  He agreed with the district court that defendants “could not possibly have been on notice of any Title IX violation.”  Id.  Given the majority’s ruling that the district court would be required to address the merits on remand, Judge Lohier believed that the majority’s discussion of the Pennhurst issue “contributes nothing of practical value to the resolution of the case”—since if the claim had no merit there would be no need to address remedies, while if the claim had merit the court would necessarily have to address the availability of damages.  No other judge joined Judge Lohier’s opinion.

Judge Pérez issued an opinion concurring in part and dissenting in part, joined by no other judge. Judge Pérez agreed with the majority that the district court should have considered the merits before or alongside the question whether Defendants received adequate Pennhurst notice.  Opinion of Pérez, J., at 1. She joined the portion of the dissenting opinion concluding that plaintiffs’ alleged injuries were not redressable through the requested injunctive relief (amendment of public athletic records), which the Judge characterized as “fanciful and reliant on fiction.”  Id. at 5.  Judge Pérez believed that the only injunctive relief that would redress plaintiffs’ harm would be re-running the races at issue, which “would be impossible, both jurisdictionally and practically.”  Id. at 6.  The amendment-of-public-records remedy, by contrast, would require the district court “to pretend” the races were rerun without participation of the transgender girls, which would require “pure conjecture” about the results given the unpredictability of how the races would have unfolded without participation of the transgender girls.  Id. at 7-9.  Judge Pérez closed her separate opinion by expressing concern about discrimination against transgender individuals and urging participants “in this ongoing national discussion to be thoughtful, respectful and responsible in the words we choose and the reactions we offer.”  Id. at 19-20.

Judge Merriam also concurred in part and dissented in part, in an opinion joined by no other judge.  Judge Merriam agreed with the dissent that plaintiffs lacked standing to seek amendment of the official athletic records but agreed with the majority that the district court should “reconsider its Pennhurst holding on a fuller record.”  Opinion of Merriam, J., at 1.

Judge Chin dissented, in an opinion joined in full by Judges Carney and Kahn, and in part by Judges Merriam, Lee, Pérez, Lohier, and Robinson.  Judge Chin believed that plaintiffs’ injury would not be redressed by amending the official athletic records to “eras[e] the times and titles achieved by” the transgender girls.  Opinion of Chin, J., at 2-3.  The dissent also saw no error in the district court’s decision to address the Pennhurst notice issue before the merits, and believed that “given the uncertain state of the law and government directives” surrounding the CIAC policy, even assuming the policy violated Title IX, defendants did not have notice of the violation. Id. at 3.  On redressability, the dissent concluded that only a “do-over” of the races at issue or damages could redress the claimed denial of equal athletic opportunity.  Id. at 8.  Judge Chin noted that past injury is not redressable by injunctive relief “unless accompanied by allegations of ongoing harm or a likelihood of future harm,” which he believed were not present despite plaintiffs’ allegations that their downgraded records “impact their future employment prospects and result in a lack of public recognition.” Id. at 9, 11, 13.  The dissent believed such ongoing harms were speculative and would result in “nothing more than the satisfaction of a judicial decision vindicating their position that the policy violates Title IX,” which is insufficient to confer standing.  Id. at 14-18. 

Finally, on the Pennhurst issue, the dissent did not understand the district court to think it was required to decide the notice question before reaching the merits; did not believe there was any bar to the court deciding the notice question first or refraining from deciding the merits if the lack of notice resolved defendants’ motion to dismiss; and believed that, “in light of the lack of clarity in the law” surrounding the CIAC policy on transgender athletes, notice under Pennhurst was required and its absence barred plaintiffs’ damages claim.  See id. at 28-33, 38-39, 43.