Litigants challenging the opening of women’s restrooms and locker rooms in schools to transgender females have roundly been defeated. While the Supreme Court could always change the trend, cases like Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board show that it is increasingly settled that students and employees must have access to facilities consistent with their gender identities. Activist litigants, however, such as Alliance Defending Freedom (ADF), have turned their attention to a different issue: transgender athletes’ participation in women’s sports.
The most recent example is the federal lawsuit filed by ADF on behalf of three high school athletes challenging the Connecticut Association of Schools’ policy of permitting transgender athletes’ participation in women’s sports. Unlike the locker room lawsuits, which relied on complicated legal theories regarding privacy rights, the athletics legal claim is straightforward: Title IX’s promise of a separate forum for female athletes to succeed is threatened when transgender athletes are allowed to compete.
Factually, the suit relies heavily on the performance differences between cisgender male and female athletes, citing the consistent gaps in performance across track events. The suit cites only one example of a transgender female athlete whose performance continued to improve after hormone suppression. The lawsuit does not make specific allegations about performance differentials between transgender and cisgender female athletes.
The suit alleges that two transgender women athletes participating in women’s track in Connecticut have displaced cisgender female athletes with respect to the top spots for state-level honors. The two transgender women have earned fifteen state championship titles in three seasons, according to the suit. The suit alleges that the impact of the transgender women’s participation is that other women are “denied” championships and deprived of an equal opportunity to experience the “thrill of victory.”
Since the lawsuit was filed, one of the female students who filed the lawsuit beat her transgender opponent in a statewide race. According to the student, this does not change their interest in pursuing the lawsuit because the transgender competitors still beat “tons of [cisgender] girls . . . on a daily basis.” The transgender athletes who are at the center of the lawsuit have also filed a request with the court to enter the case as named defendants.
That lawsuit claims that Connecticut’s athletic association is violating Title IX by failing to provide adequate athletic opportunities for women as compared to men and by not providing equal opportunities for women to participate in post-season competition. The cisgender female athletes who filed the suit seek a court order that would bar transgender women from participating in women’s sports in Connecticut and “correct” past records to remove the honors awarded to transgender women to date
Illinois and other states’ schools will gladly let Connecticut take a front seat in this next courtroom battle. But because rules in many other states, including in Illinois, are sufficiently similar to the Connecticut rules this dispute could come to a school near you with the rise of a single talented transgender athlete. While the context is different from the locker room battles, the fundamental issue is the same: whether the law will acknowledge transgender women as women or men as men. For locker rooms, the answer was yes. For athletics, the courts will soon decide.