Female athletes get short shrift from 2nd Circuit

OPINION:

“Elections have consequences,” President Barack Obama gloated three days after taking office in January 2009.
 
“And at the end of the day, I won,” the Democrat added, reminding the Republican minority in the 111th Congress whose agenda he expected to prevail.
 
Nearly 14 years later, four young women from Connecticut are suffering regrettable consequences of Mr. Obama’s election and agenda.
 
Two of the federal appeals court judges he appointed to the bench — together with a third judge nominated by his former veep, President Biden — ruled unanimously against the now-graduated former high school athletes on Dec. 16. 

The cockeyed ruling by a three-judge panel of the 2nd U.S. Circuit Court of Appeal blithely dismissed their legitimate complaints about the inherent unfairness of having to compete in track and field meets against biological males who “identify” as girls as meritless. 
 
Judges Denny Chin and Susan Carney were appointed by Mr. Obama in 2010 and 2011, respectively, and Judge Beth Robinson was nominated by Mr. Biden in 2021. They affirmed a misbegotten ruling from U.S. District Judge Robert Chatigny, a 1994 appointee of yet another Democratic president, Bill Clinton.

“The 2nd Circuit got it wrong, and we’re evaluating all legal options, including appeal” in the case of Soule v. Connecticut Association of Schools, said a spokeswoman for the Alliance Defending Freedom, a nonprofit law firm representing the four young women.

The basis of their complaint, as summarized by the ADF: “Starting in 2017, two male athletes began competing in Connecticut girls’ high school track. In just three years, those two biological males broke 17 girls’ track meet records, deprived girls of more than 85 opportunities to advance to the next level of competition and took 15 women’s state track championship titles.

“Four of those championship titles were earned by ADF’s client, Chelsea Mitchell. Four times, she was the fastest female in a women’s state championship race, and four times she watched that title, honor, and recognition go to a male athlete instead. Over the course of her high school career, Mitchell lost to these males more than 20 times.

“The other female athletes represented in this case, Selina Soule, Alanna Smith, and Ashley Nicoletti, all likewise have been denied medals, placements, or advancement opportunities because of the male athletes competing on their team.”

Yet even in the face of this incontrovertible evidence of the unfairness of allowing biological males to compete under the pretense they’re females, these liberal judges gave the real girls the bum’s rush. Their ruling dismissively referred to the plaintiffs as “cisgender girls,” adopting the loaded leftist language contrived by the LGBTQ lobby.

In its 29-page ruling, the appeals panel upheld the lower court’s dismissal of their claim challenging the schools association’s policy of allowing transgender students to participate in gender-specific athletics consistent with their “gender identity.” That’s clearly contrary to the spirit and letter of the landmark 1972 federal Title IX law ensuring equal opportunity for females. (No one can plausibly argue that the authors of Title IX ever intended it to include wannabe women.)

The court ducked addressing the issue head-on by declaring the case moot because both the four plaintiffs — and the two faux females who had hijacked their medals and records — have all since graduated. The judges patronizingly noted that in a few instances, the real girls had beaten the boys, so it wasn’t as though they were cheated every time.

It further held that since the plaintiffs had graduated, they had no standing to enjoin the schools association from continuing to allow transgender biological males to participate in girls’ athletics or to require the schools’ athletic record books to be revised retroactively to recognize who would have been the true winners in the absence of the intersex interlopers.

The ruling — which flies in the face of common sense and common decency — should be appealed to the full 2nd Circuit, although that circuit’s composition — 17 judges appointed by Democratic presidents, but only 11 named by Republicans — suggests that might prove futile. 

It might be more efficacious — and more expeditious — to take their appeal directly to the Supreme Court, where they might find a more receptive audience.

If and when Soule v. Connecticut Association of Schools reaches the Supreme Court, it will present the justices with the opportunity to sharply circumscribe their ill-considered 2020 decision in Bostock v. Clayton County, which the lower court cited.
 
In Bostock, the Supreme Court interpreted Title VII’s prohibition of discrimination in employment “on the basis of sex” as also barring discrimination based on transgender status. 

Inexplicably, the 6-3 ruling was written by putative conservative Justice Neil Gorsuch, who was joined by Chief Justice John Roberts and the then-four lockstep liberals.

Anticipating the dangerous precedent his ruling might be seen as setting and seeking to preempt that, Justice Gorsuch insisted, “They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today, but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” (He didn’t specifically cite interscholastic athletics there, but should have.)

Still, Ms. Soule and her co-plaintiffs — and other female high school and college athletes in the 32 states that haven’t yet barred faux females from competing against them — are being cheated out of what is rightfully theirs. That’s a wrong that the high court must redress.