In Selina Soule et al. v. Connecticut Association of Schools et al., No. 21-1365 (2d Cir. 2022), the plaintiffs appealed a judgment from the United States District Court for the District of Connecticut dismissing their claims alleging that the state’s trans-inclusive sports policy violated Title IX because it disproportionately disadvantaged cisgender girls as compared to boys. The policy allows transgender students to participate in gender-specific sports consistent with their gender identity.
In order to satisfy the constitutional requirement of standing, plaintiffs in federal court must establish they have suffered an injury in fact. To satisfy this requirement there must be an invasion of a legally protected interest that is concrete and particularized and actual or imminent, the injury must be fairly traceable to the challenged action of the defendant, and it must be likely that the injury will be redressed by a favorable decision. A plaintiff seeking injunctive or declaratory relief cannot rely on a past injury but must show a likelihood that they will be injured in the future. A claimed future injury must be certainly impending to constitute an injury in fact.
The plaintiffs argued that the policy deprived them of the chance to be champions and the athletic league's records perpetuated this past injury because by failing to appropriately credit female achievements, athletes like the plaintiffs feel erased. The Court found that this theory failed to establish injury in fact and redressability. The plaintiffs regularly competed at state track championships and on numerous occasions were champions, finishing first, even sometimes when competing against trans athletes. Additionally, the Court found that revising the records would not give the plaintiffs a chance to be champions. Thus, the Court concluded that the mismatch between the plaintiffs’ alleged injury and requested relief was fatal to establishing redressability.
The Plaintiffs argued that the current records could affect their future employment opportunities and that correcting the records would redress this harm. The Court noted that while employers often find candidates with athletic experience more appealing, the records that the plaintiffs wanted re-written already showed their participation and impressive achievements in high school athletics. Furthermore, the mere fact that athletic experience may be a significant factor for prospective employers did not show that the plaintiffs’ future employment opportunities were harmed by the records. The plaintiffs could only speculate as to how employers would exercise their discretion when hiring and whether the requested revisions would have any noticeable impact. Thus, the plaintiffs failed to show injury in fact because they did not establish that the records would cause future injury to their employment opportunities that was certainly impending. Furthermore, an injunction requiring changes to the records would not bind any prospective employer who considered hiring one of the plaintiffs; thus, a favorable decision for the plaintiffs was not likely to change their future employment outcomes. The Court noted that even if the records were changed, a simple internet search would reveal the controversy regarding the records.
The Court explained that the plaintiffs’ suit for private damages could proceed only if it was shown that the athletic league and its member schools had adequate notice that they could be liable under Title IX as a result of the policy. Cases from other circuits established that discrimination based on transgender status is generally prohibited under federal law and supported the conclusion that the athletic league and its member schools lacked clear notice that the policy violated Title IX. Therefore, the Court found that the plaintiffs’ claims for money damages were barred.
The Court affirmed the judgment from the United States District Court for the District of Connecticut dismissing the plaintiffs’ complaint.