Connecticut’s attorney general and human rights agency aren’t backing down from upholding a state law allowing transgender high school girls to compete on girls’ sports teams, despite a finding by the Trump administration that it’s illegal.
Gov. Ned Lamont, however, indicated last week that he may be willing to reconsider the law.
The U.S. Department of Education’s office for civil rights has determined that Connecticut’s interscholastic sports governing body and six school districts violated Title IX with a policy that permits transgender students to compete based on their gender identity.
Last month, the U.S. Department of Education’s Office of Civil Rights issued a finding that the Connecticut Interscholastic Athletic Conference’s policy, which is rooted in state law, violates the Title IX rights of girls, who were assigned female from birth.
In its May 14 letter of “impending enforcement,” the federal agency gave the CIAC and the six school districts named in a complaint 20 days to come up with a plan to address the violation. Otherwise, the parties risked either losing federal funding or could face legal action by the U.S. Justice Department.
That date passed recently – June 4 – and it seems clear that the CIAC and the districts won’t be coming up with a plan to comply. State law prohibits discrimination on the basis of gender identity, which it says can be different from the gender associated with a person’s physiology, and can be established simply by consistently asserting it. CIAC policy allows athletes to compete in accordance with their gender identity. No hormone treatment is required.
Attorney General William Tong said state law “clearly demands that transgender girls be protected from the discrimination in athletics and elsewhere.”
“The Office of the Attorney General would oppose any effort to deny or cut funding to which the state is entitled,” Tong said, “and we would vigorously oppose any such efforts by the U.S. Department of Education.”
CIAC appears to be acting accordingly.
“From what I’ve seen, the school districts and the CIAC have been vigorously defending their positions in the federal lawsuit, and I expect them to continue to do so,” said Michael Roberts, a human rights attorney with the state’s Commission on Human Rights and Opportunities. “To the extent that there’s a need to defend state protections, we stand prepared to do that as well.”
We will hopefully assist in the effort to ensure that trans athletes are able to participate in accordance with their gender identity.”
Glenn Lungarini, executive director of CIAC, said he could not comment on the case beyond the group’s statement issued last month that says the state law is clear: “students who identify as female are to be recognized as female for all purposes — including high school sports.”
However, at a press briefing last week, Lamont cracked open the door to the idea of reconsidering. He said his office is reviewing the law, that he doesn’t want lose any federal funds and that he is looking at the NCAA and the Olympics’ policies on this. The NCAA requires that transgender women receive at least a year’s worth of hormone treatment before competing on a women’s team, while the International Olympics Committee requires that a trans woman have a testosterone level that is below a certain level for at least a year.
“I’m seeing how those organizations handle this very delicate issue of somebody who identifies with a gender that they weren’t necessarily born with,” said Lamont, “and I think we’ve got to work through that. I think we’re going to get a lot of indications from the NCAA and the Olympics and perhaps follow their lead.”
A spokesman for the governor later said that the U.S. Department of Education “is making a political decision here on what they deem to be a civil rights issue… We do not believe that funding strings should be tied to these kinds of policies.”
The case stems from a complaint filed a year ago with the U.S. Department of Education by three Connecticut girls arguing that their Title IX rights have been violated by the CIAC policy on transgender athletes, which they say pits girls against athletes who are biologically male despite their female gender identity.
They contend in the complaint, which was filed on the three girls’ behalf by the conservative group Alliance Defending Freedom, that they have been robbed of top finishes and possible college scholarships by transgender girls who have the physical advantages of males.
In February, the girls, who are track and field athletes, also filed a federal lawsuit making the same claims and seeking an injunction that would prohibit the CIAC and school districts from permitting transgender girls to participate in girls’ sports as well as expunge the names of any trans girls from all sports records.
The lawsuit says the trans athletes, Andraya Yearwood of Cromwell and Terry Miller of Bloomfield, took 15 women’s state championship titles in the 2017 through 2019 seasons. Miller also won the Hartford Courant’s girls’ indoor track and field athlete of the year award in 2019. Both athletes are graduating this year.
Roberts said the state’s human rights commission has been granted status as an intervenor in the federal law suit.
“Our interest is in ensuring a cohesive body of law and making sure that Connecticut protections remain in place,” Roberts said. “We will hopefully assist in the effort to ensure that trans athletes are able to participate in accordance with their gender identity.”
Exactly how the Office of Civil Rights action, which is called a “letter of impending enforcement” and the ongoing federal lawsuit will proceed is uncertain. Experts say the two are on parallel tracks now, but it’s possible they could become consolidated at some point.
The Office of Civil Rights’ letter says it could pursue an administrative proceeding to “suspend, terminate or refuse to grant” federal funding to the CIAC or the six school districts or it could refer the case to the U.S. Department of Justice for judicial proceedings.
Attempts to get the U.S. Department of Education to comment concretely on the strategy they might pursue, which steps they might take next and how long it might all be expected to take were unsuccessful.
“This is an ongoing enforcement matter,” a spokesman for federal education agency said in an email. “For this reason, OCR will not comment on pending or prospective actions.”
However, the official did provide information showing that Lamont has little to fear when it comes to having federal funds withheld. While the Office of Civil Rights has come close to withholding federal funding, it has never actually done so. Since 2000, there have been only 20 letters of impending enforcement issued, including this one.
Felice Duffy, a former federal prosecutor with a law practice in New Haven that focuses on Title IX, said it’s “very, very unusual for somebody not to have resolved this. Typically, any educational institution that’s found not to be in compliance with Title 9 works out a resolution.”
But David Monastersky, who represents the school districts in Glastonbury and Canton, said the districts couldn’t sign any resolution agreement with OCR because it would have meant agreeing that transgender girls could not participate in girls’ sports.
“How can I sign this document when it clearly violates Connecticut law?” asked Monastersky. “We refused to sign it because, if we sign it, we get sued by other people.”
Going forward
Continuing to pursue administrative action with the threatened withdrawal of federal funding is one thing the OCR may opt to do. Another is to refer the case to the Justice Department, which could opt to file a second federal lawsuit about the issue that might well be combined with the first, experts say.
“I think it’s possible that we might see some agreement to let the judicial process run its course,” said Erin Buzuvis, a professor at Western New England College’s school of law and director of the school’s Center for Gender and Sexuality Studies. “It might seem efficient to say, ‘Let’s put off the administrative hearing and jump over that step and merge it with the court case, and see if we can get some clarity from the court.’”
Duffy, the New Haven attorney, agreed with that assessment.
“If there was ever a time to wait for a court case without hurting any of the students, this would be the time to do it,” she said, because everyone is out of school due to COVID-19.
The Alliance Defending Freedom had sought a preliminary injunction in the federal court suit seeking to bar the participation of transgender athletes in girls’ sports during the spring season while the court case is underway. When school shut down because of of the pandemic this past spring, the request for a preliminary injunction did not go forward.
But Christiana Holcomb, an attorney with the Alliance Defending Freedom, said she expects to again pursue a preliminary injunction barring transgender students from participation on the girls’ teams while the court case is underway.
Two of the girls who filed the complaint and the federal lawsuit, Selina Soule and Chelsea Mitchell, are graduating this month. That leaves Alanna Smith, who will be a junior this fall at Danbury High School, and a new plaintiff added to the federal suit, Ashley Nicoletti, who will be a junior at Immaculate High School in Danbury.
“Two of our clients will be competing in the winter indoor track and field season,” said Holcomb. “So we certainly would hope that the injunction would be granted prior to that time so that Alanna and Ashley are able to compete only against other biological girls.”
For Selina Soule, the OCR finding didn’t come soon enough to provide her with a chance to avoid competing against Yearwood and Miller. She has said that she was demoralized when she was edged out of post-season competition by the duo.
Still, she said recently, “It’s very encouraging knowing that the federal government believes that we are right in this instance, and hopefully that will lead to a policy change that will bring fairness back to track and field – for not only me but future generations of girls.”
Dan Barrett, the attorney for Yearwood and Miller in the federal suit and legal director for the American Civil Liberties Union of Connecticut, said that the OCR’s decision is “not surprising given who is running the Department of Education… It’s pure hostility toward trans kids” and a radical break with precedent, he said.
He added that OCR “categorically refuses to acknowledge that a girl who is trans is a girl. It refers to those girls as male athletes.”
Through Barrett, Yearwood and Miller declined to speak to the press.
No one interviewed for this story knew whether there might be other trans girls intending to play sports this fall in the state, but Holcomb said the ADF intends to pursue the case regardless.
“Prior to the time that Terry and Andraya began competing in the female category, there was no advance warning, so this is sort of a perennial problem in that the policy would allow a male who is currently competing as a male athlete to turn around and start competing in the girls’ category,” Holcomb said. “So, we just want to make sure that the policy is put on hold so that the girls aren’t confronted with another situation of that kind.”
In addition, Holcomb said the suit will still be relevant because the plaintiffs are seeking to have Yearwood and Miller’s names removed from the record books, and, Holcomb said, “fixed to reflect the wins that the girls would have received.”
As of now, though, trans girl athletes in Connecticut will continue to play on teams aligning with their gender identity.
Patrice McCarthy, deputy director and general counsel for the Connecticut Association of Boards of Education, said she is advising her members to follow state law and the CIAC policy and allow any transgender girls to play on girls sports teams.
If the OCR should come after a district’s federal funds, “Certainly the district could argue that since there’s a federal court case pending that should be held in abeyance,” McCarthy said. “I don’t think that’s an immediate threat.”