The effort to protect girls and women’s interscholastic sports from unfair competition from males claiming to be females received an encouraging signal from a federal appeals court in New York this week.
The 2nd U.S. Circuit Court of Appeals issued notice on February 13 stating that it was vacating (removing) a December 2022 decision from a three-judge panel of 2nd Circuit judges against several female Connecticut high school track athletes and will re-hear the case.
In the appeal, several female track athletes are seeking to overturn a Connecticut state policy allowing so-called “transgender” women – i.e., males who claim to be females – to compete against high school girls.
The notice explains that a poll was taken among all the active judges on the 2nd Circuit and that a majority voted to rehear the case, titled Soule v. Connecticut Association of Schools. The athletes who brought the lawsuit – Selina Soule, Chelsea Mitchell, Alanna Smith and Ashley Nicoletti – are represented by attorneys with Alliance Defending Freedom (ADF).
The appeals court’s notice is good news for the female track athletes. To understand why, we have to look at their track record in the courts thus far – excuse the pun.
In their legal effort to force Connecticut to leave female sports to female athletes, the girls have lost twice already, once when a federal district court judge dismissed their case in April 2021, and again last December when the three-judge panel of 2nd Circuit judges affirmed the lower court’s dismissal of the case.
However, the way that federal appeals courts work is that the full complement of judges in any given circuit – e.g., in the 2nd Circuit there are 13 active judges – can, in effect, look over the shoulder of any three-judge panel to make sure that any particular decision a panel issues is correctly decided. And that’s what happened here.
The process is almost like an appeal to a higher court, except that in this case the appeal stays in the same building in New York and will be heard by all 13 judges – called an “en banc” court – rather than just three.
So why is this good news?
In practice, if a majority of the judges on a particular circuit have no problems with a decision from a three-judge panel, they won’t agree to rehear the appeal. They have no reason to.
But when a majority of the judges do have a problem with what a three-judge panel decided, you get what happened in this case: an order vacating the panel decision and a notice that the en banc court will take another look at the case.
If you read between the lines, then, you can reasonably speculate that the en banc 2nd Circuit will do something different than what the three-judge panel did. Which should result in a reversal of the district court’s dismissal, allowing the athletes to proceed with their legal claims. But we’ll have to wait and see if that’s what actually happens.
ADF Senior Counsel Christiana Kiefer hailed the 2nd Circuit’s announcement in a press release:
“Selina, Chelsea, Alanna, and Ashley—like all female athletes—deserve access to fair competition,” Kiefer said. “We’re pleased the 2nd Circuit has decided to rehear this important case, and we urge the court to protect women’s athletic opportunities.
“Eighteen 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.”
Girls and women’s sports have historically been protected from unfair participation by males because of Title IX, the federal education law that prohibits discrimination against women. That is, until the current woke gender ideology infected some state (and federal) agencies’ definition of what a “woman” is.
Under Connecticut’s redefinition of “woman” that allows males to compete as females, according to a fact sheet from ADF, from 2017-2019 when these girls were competing at the high school level, two boys won 15 women’s track championship titles – titles that were once held by nine different girls.
Because of Connecticut’s policies, girls have lost over 85 opportunities to participate in higher levels of competition. The unfairness of the new woke gender ideology on female sports is apparent, and violates federal law, at least as it has been understood for the last 50 years.
Hopefully, the 2nd Circuit will correct the lower court’s dismissal of the female athletes’ case, and ultimately protect their rights under Title IX to compete only against other females. The Daily Citizen will continue to follow this case and provide updates.
Photo from Alliance Defending Freedom.