In Soule ex rel. Stanescu v. Connecticut Assoc. of Schools, Inc., No. 21-1365 (2d Cir. Dec. 15, 2023) (en banc), a rare full-court opinion by the Second Circuit, fifteen judges (thirteen active and two senior) concur that there is Article III standing for four female high-school athletes who alleged they are aggrieved by competition with transgender girls. Yet the court’s opinion is only joined in full by seven judges, and there are seven separate opinions that reach differing conclusions on other aspects of the case. The court does not reach the merits of the Title IX claim. (For brevity’s sake, this post will skip over the Spending Clause notice issue also addressed by the majority.)
The case was brought by four track-and-field athletes identified as non-transgender. “Ten years ago, the conference governing interscholastic sports in Connecticut [CIAC] made the decision to permit high school students to participate in school-sponsored athletics consistent with the gender identity established in their school records. This case arose when Plaintiffs, a group of non-transgender girls, challenged that policy in federal court, alleging that it violates Title IX, which prohibits sex discrimination in education. To remedy their alleged injury, Plaintiffs seek monetary damages from the athletic conference and its member school districts, whom they named as Defendants. They also seek an injunction requiring Defendants to alter certain athletic records by removing times of transgender girls and reranking titles and placements of non-transgender girls.”
“In Plaintiffs’ view, the CIAC Policy of allowing participation consistent with an individual’s established gender identity discriminated against them by requiring Plaintiffs to compete against transgender girls, who Plaintiffs allege have a ‘physiological athletic advantage’ . . . . Plaintiffs claim that by putting them at this alleged competitive disadvantage, the CIAC Policy violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, which prohibits sex discrimination in education by institutions that receive federal financial assistance.”
Thereafter, two transgender girls and the state’s commission on human rights intervened. The intervenors had finished ahead of plaintiffs in competitions. Were injunctive relief granted, as sought, their results would conceivably have been erased from the official records.
The en banc court remands for consideration of the merits.
“[T]wo live issues remain before us: whether Plaintiffs have Article III standing to sue for the remedies they seek and whether Pennhurst bars their claim for monetary damages. For the reasons that follow, we conclude (1) that Plaintiffs have pled facts sufficient to establish standing to seek monetary damages and some of the requested injunctive relief, and (2) that the district court can and should reach the merits of Plaintiffs’ Title IX claims before or in tandem with the question of Pennhurst [State School & Hospital v. Halderman], 451 U.S. 1 (1981) notice.” (As noted above, my post will step past the latter notice issue and focus on standing.)
The majority holds that plaintiffs alleged an injury-in-fact, i.e., a concrete, particularized, and actual harm. “Plaintiffs allege that the CIAC Policy deprived them of an opportunity to compete in fair and non-discriminatory high school track races, in violation of Title IX. Moreover, the complaint alleges that Plaintiffs’ results in those races were specifically impacted by the CIAC Policy,” namely that they would have won races or advanced in competition had they not competed against transgender athletes.
“First, Plaintiffs allege a concrete injury: the denial of ‘equal athletic opportunities’ and loss of publicly recognized titles and placements in track and field competitions, in violation of Title IX . . . . [C]rucially for Plaintiffs’ request for an injunction to alter the records, the alleged impact of the CIAC Policy on Plaintiffs is measurable, not abstract or speculative. Plaintiffs’ claim is not that they might have won placements and titles if Intervenors had not competed, but rather that they certainly would have . . . . Second, the alleged injury is particularized because Plaintiffs are athletes who personally competed in CIAC-sponsored events, rather than, for instance, bystanders who simply wish to challenge the CIAC Policy because they disagree with it on principle . . . . Finally, the injury is actual because it is alleged to have already occurred.”
The majority also holds that the injury is redressable by a judicial ruling. Eleven judges agree that the prospect of nominal or compensatory damages is sufficient. Nine judges agree that the prayer for injunctive relief, to “correct . . . times, victories, or qualifications for elite competitions” in race records to remove transgender results, would also redress the alleged violation. “[T]he complaint alleges that Plaintiffs would have placed higher in several races but for the participation of Intervenors . . . . It is plausible that altering certain public athletic records—for example, indicating that Plaintiff Mitchell finished 1st rather than 3rd in the 2019 state open indoor 55m final—would at least partially redress the alleged denial of equal athletic opportunity by giving Plaintiffs the higher placements and titles they would have received without the CIAC Policy in place, albeit belatedly.”
The majority notes that “[t]he same would be true were the shoe on the other foot. Imagine if some other athletic conference adopts a policy that, unlike the CIAC Policy, categorizes transgender girl athletes as boys in their public records of athletic accomplishment. Under today’s holding, if those transgender girls sue alleging a Title IX violation, they would have standing to seek to have those public records altered to indicate their alleged accurate athletic achievement. And by similar logic, the Intervenors have an ongoing interest in litigating against any alteration of their public athletic records.”
The majority further notes that “the standing analysis in this case [does not] depend on the relevance of the injunctive remedy for obtaining some additional future benefit, such as employment opportunities . . . . The loss of publicly recognized titles and lower placements in specific races is itself an existing and ongoing effect of Plaintiffs’ alleged injury—an effect that would be redressed by public record alterations reflecting those achievements.” Conversely, “[a]n order requiring Defendants to remove record times and achievements of transgender girls that have no impact on Plaintiffs’ own athletic achievements would afford Plaintiffs at most the ‘psychic satisfaction’ of ‘a favorable judgment,’ which ‘is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.’”
Several of the separate concurring and dissenting opinions also address standing.
Judge Lohier, writing for himself, notes the reverberations of the en banc decision beyond Title IX: “the broader approach to redressability that our Court announces today is not limited to Title IX cases” and “extends just as forcefully to cases arising under Title VII and other federal civil rights statutes.”
Judges Nathan and Robinson also note, in a manner of speaking, that what’s redressable for the plaintiffs in this case would apply equally to a case brought by transgender girls. “In my view, if you would conclude that this hypothetical plaintiff would have standing to seek such injunctive relief, then you should conclude the same as to Plaintiffs in this case. The majority’s holding that the public recognition of students’ athletic achievements, as reflected in the records documenting those achievements, is a cognizable interest in the eyes of the law ensures that federal courts are accessible not only to Plaintiffs in this case, but litigants like [intervenors] in some future case.”
Judge Pérez likewise notes that the “Court speaks in one voice that denial of equal opportunity in violation of an antidiscrimination statute is clearly a cognizable injury in fact,” but rejects the holding that there is standing for injunctive relief in this case to supposedly “correct” the race records. “This attempt to retrofit a forward-looking remedy onto a past injury would require the district court to contort itself into knots and hold irreconcilable sets of facts as true. Any resulting injunction would be the product of pure conjecture . . . . Track-and-field competitions are inherently unpredictable events. Absent [intervenors’] participation, every at-issue race would have been run with a different slate of competitors, which could have affected other variables such as lane placements, athlete reaction times, and false starts.”
Judge Chin’s dissent, joined in whole or part by eight judges, would hold “that although Plaintiffs have alleged injury in fact, they have not sufficiently alleged redressability, that is, that their injury will be redressed by the relief sought. The claimed injury — the denial years ago of an equal opportunity to compete under Title IX — would not be redressed by an injunction erasing the times and titles achieved by [intervenors].” (This section of the dissent is joined by six judges.)
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