Girls’ sports were dealt another setback this week after female high school athletes, who have been forced to compete with biologically male athletes in track and field contests, were unsuccessful in their lawsuit against the Connecticut Association of Schools. 

The four girls represented in the lawsuit claimed they had fewer opportunities to win races, enter postseason elite competitions and win championships because biologically male students who identified as girls were unfairly advantaged in those races. The lawsuit also argued that biological girls had a lower likelihood of breaking records and that they missed out on certain achievements that could play a role in scholarships and future employment opportunities.

However, the 2nd Circuit Court of Appeals ruled against the four athletes and denied their request for an injunction to rewrite the records. They also denied their request for monetary damages. The three-judge panel, whose jurisdiction covers Connecticut, New York and Vermont, ruled that the athletes did not have standing because they failed to demonstrate injury and failed to show how their request would redress the alleged injuries. 

Christiana Kiefer, senior counsel at Alliance Defending Freedom, which represented the four girls, said that the court got it wrong and that they are considering an appeal and other legal options. Any appeal would need to go to the U.S. Supreme Court. 

“Our clients — like all female athletes — deserve access to fair competition,” Kiefer said in a statement. “Thankfully, a growing number of states are stepping up to protect women’s athletics. 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. Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics, and ADF remains committed to protecting the future of women’s sports.”

Kiefer told the Register that two transgender athletes who were “bigger, faster, stronger” and were “biological males” competed in the girls’ high school track contests in Connecticut, starting in 2017. She said those two athletes won championships and broke records that would have otherwise gone to biological female students. Even when the transgender students did not win championships, they advanced to later stages in competitions, which prevented biological girls from competing for the opportunity to win. 

Over the course of three years, the ADF notes that two biological males broke 17 girls’ track meet records, won 15 state track championship titles and took 85 spots in next level competition that would have otherwise gone to a biologically female athlete. One of the girls in the lawsuit, Chelsea Mitchell, placed second in four state championship races in which one of the biological males won. The group noted that Mitchell lost to the biologically male athletes more than 20 times. Kiefer said the reason there are distinct categories for male and female athletes is because of the real physical differences between the sexes. 

The appellate court did not believe that was enough evidence to show that the biological female athletes were deprived of an opportunity to win. In the ruling, the court noted that the four girls who filed the lawsuit regularly competed in track championships and had the opportunity to win other events in which the two transgender students did not compete, and did win some of them. Even though Mitchell lost to the two transgender athletes several times, the ruling noted that she defeated both of them in a 100-meter dash in 2019. 

The ruling also stated that federally funded institutions can only be financially liable for Title IX violations when they receive adequate notice that they could be liable for a specific issue. The court found that, on the contrary, the legal precedent suggests that this would not be a Title IX violation. 

 

Different Approaches in Different States

These concerns are not isolated to Connecticut, but rather have caused controversy throughout the country and even internationally. However, policies vary widely among the 50 states and there is no set national standard for transgender athletes in high school or college.

Kiefer said there is a trend in which mid-level male athletes perform average in the men’s category, but then excel in the female category following a gender transition. She noted that the most famous example is transgender college swimmer Lia Thomas, who ranked 554th in the men’s 200 freestyle and then fifth in the women’s category. Thomas also moved up from 65th in the men’s 500 freestyle to first in the women’s category and then moved from 32nd in the 1650 men’s freestyle to eighth in the women’s category. 

As of December 2022, 18 states have banned biological males from competing in K-12 athletics programs reserved for girls. Most of the states that have adopted this type of legislation have Republican-controlled state legislatures and a Republican governor. The only two exceptions are Louisiana and Kentucky, which have Republican-controlled legislatures and Democratic governors. Kentucky Gov. Andy Beshear vetoed the legislation, but his veto was overturned by Republican lawmakers. Louisiana Gov. John Bel Edwards vetoed the proposal in 2021, but then let the bill go into effect after lawmakers sent it to him for a second time in 2022. 

Many of these laws have faced legal challenges.

Kiefer said these bills should receive bipartisan support because this is not a partisan or political issue. Rather, she said these laws seek to ensure that girls have fair opportunities in athletic competitions. 

Even though there are no federal standards, President Joe Biden’s administration has proposed changes to Title IX that would expand its protections to include transgender students. The proposed language does not specifically address athletics, but some Republicans have warned that it could be interpreted to include athletics. Several Republican attorneys general said they would file a lawsuit over the change if it were to go into effect.