A federal appeals court in New York is set to consider a closely watched and yearslong legal challenge over transgender girls' participation in female school sports competitions.
The full U.S. Court of Appeals for the 2nd Circuit will consider a decade-old Connecticut policy that permits high school students to compete on teams that correspond with their gender identity, even if it differs from the sex on their birth certificate. The suit was filed three years ago by four female high school track-and-field athletes in the state.
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The case has already come before a three-judge panel once before, but it was tossed out because the panel held the plaintiffs' claims as "speculative." After its initial filing, a district court held out on a ruling for 14 months before it was dismissed at that level, saying that the girls' lawsuit under Title IX could not move forward after the male athletes had graduated.
"And the district court, in our opinion, got it very wrong because there are still things that need to be fixed, including the girls' records," Christiana Kiefer, senior counsel of Alliance Defending Freedom, told the Washington Examiner.
The court is weighing the female athletes' claims that the policy makes it harder for girls to win in their sports if they are forced to compete against athletes with the physical advantages of male athletes, saying the rule directly conflicts with Title IX, the federal law barring sex discrimination in education.
Defenders of the Connecticut policy say that striking down the policy would itself constitute a form of discrimination by blocking transgender athletes from participating on the all-female team. Groups including the American Civil Liberties Union have vowed to defend the rule.
“The court’s previous decision affirmed that our clients played by the rules and that all girls, trans and cisgender, have a right to play under Title IX,” the ACLU said in a statement.
Meanwhile, attorneys for the Connecticut Association of Schools and other defendants argue the policy is legal and that plaintiff athletes have no valid basis for challenging it.
“The races cannot now be redone, nor are Plaintiffs seeking such a redo,” they said in a court filing, adding that the law doesn’t allow the challengers to seek any monetary damages either.
Alanna Smith, one of the students who filed the lawsuit, said in a statement that she hoped the 2nd Circuit would "realize how important this issue is and they will restore fairness to women’s sports."
Kiefer said she didn't expect the appeals court to reach the full merits of the case, adding that would "hopefully" come later because her group is "hopeful that the 2nd Circuit will allow the lawsuit to move forward so that we are able to make our full case."
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"For this particular hearing today, we will be making the case that girls' athletic records and our accomplishments matter, not just in high school, but for their college prospects and even for future employment prospects as well," Kiefer added.
A decision is expected in the coming months.