A Victory for Female Athletes

Bloomfield High School transgender athlete Terry Miller (2L) wins the final of the 55-meter dash over transgender athlete Andraya Yearwood (L) and other runners in the Connecticut girls Class S indoor track meet at Hillhouse High School in New Haven, Conn., on Feb. 7, 2019. Pat Eaton-Robb/AP Photo

Commentary

Four young women—Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti—were star athletes at high school girls’ track meets in their home state of Connecticut. Ms. Mitchell, in particular, earned four statewide running championships, making her the fastest young female runner in the state in 2019.

But Ms. Mitchell—and the other three young women who also outran their female competitors at various events—forfeited all those championships to two male runners identifying as transgender who were allowed to compete against them and sweep the races under a pro-transgender athletics policy adopted for public and private K-12 schools in Connecticut in 2013. That meant the four girls also forfeited titles, medals, and opportunities for college scholarships.

And now, finally, after three years of litigation in federal court, the four, who are now college students, have won a ruling from the full Second U.S. Circuit Court of Appeals that allows them to proceed with a lawsuit for damages over alleged violations of Title IX of the Civil Rights Act, which bans discrimination on the basis of sex by educational institutions.

All 15 active judges on the Second Circuit voted unanimously to let the lawsuit go forward, overturning decisions by a federal district judge in 2021 and a three-judge panel of the Second Circuit in 2022 holding that the girls’ claims of injury were too nebulous to merit either money damages or an injunction they sought that would recognize their actual achievements in relation to the biological females they competed against. The full court’s Dec. 15 opinion carefully avoided speculating whether Ms. Mitchell and her co-plaintiffs would actually win their case after a trial, but it did say they had a “plausible” claim.

This in itself was a huge victory—and not just against the Connecticut Interscholastic Athletic Conference, which set the “Transgender Participation” policy, and the school boards where the girls resided that adopted it. An entire education, civil rights, and political establishment insists that there are no general differences in strength, agility, and running speed between human males and females, that “gender” is merely a matter of which sex one happens to identify as, and that being able to compete in sports as a member of one’s self-identified gender is a fundamental civil right.

This is in the face of widely documented physiological differences between male and female bodies post-puberty, including larger, denser bones, larger hearts, and more muscle mass in men’s bodies than women’s, together with an average of five more inches of height. For that reason, equipment standards are different in men’s and women’s athletics: larger basketballs and higher hurdles for men than women. No woman has yet run a four-minute mile, although for top male runners, breaking four minutes is routine.

The Connecticut imbroglio began in 2017, when Andraya Yearwood, a male high school freshman who identified as a girl, started competing in—and winning—girls’ running events. The next year, Terry Miller, who also identified as a girl, switched from boys’ track to girls’ track and started compiling championships. By 2019, the two transgender athletes were competing at top levels. Between them, they broke 17 girls’ track records and took 15 state championship titles. Media photos abounded of the conspicuously tall transgender athletes sailing to first and second place in races while girls struggled behind them.

When Ms. Mitchell and her co-plaintiffs filed their Title IX suit, all the legal and political cards seemed stacked against them. Federal District Judge Robert Chatigny refused to let the young women’s lawyers, affiliated with the nonprofit Alliance Defending Freedom, use the term “biological males”: they were “transgender girls,” Judge Chatigny ordered. In 2021, he dismissed the suit, ruling that the young women lacked standing to sue on what he regarded as a vague and unfocused claim of injury. The Second Circuit’s three-judge panel agreed, writing that the four women, in seeking to have the record corrected to show them as the true winners of the medals, had been asking for mere “psychic satisfaction”—which wasn’t a court’s job to give. The American Civil Liberties Union (ACLU), whose lawyers represent the two transgender athletes as intervenors in the lawsuit, argued in a brief: “Girls who are transgender are girls who were [mistakenly] assigned a male sex at birth.”

Ms. Mitchell and her co-plaintiffs Ms. Soule, Ms. Smith, and Ms. Nicoletti have a long way to go—but they have succeeded in persuading an important panel of judges that a claim that letting males compete in sports designed to give females the opportunity to prove their athletic prowess might constitute a civil-rights violation. That’s a highly significant legal advance.

Around the world, in sports ranging from running to cycling to swimming to weightlifting, women have suffered the loss of championship titles that ought to be theirs, and sometimes devastating physical injuries as well, as has happened with MMA fighting. Some 23 states now ban transgender participation in youth athletics—but those laws are under fire. In August, the Ninth U.S. Circuit Court of Appeals struck down a recently enacted Idaho statute on the grounds that it denied transgender people equal protection of the law—and the ACLU is challenging similar statutes elsewhere. Cheerleading those challenges are most of the major media and such self-described feminist organizations as the National Organization for Woman and the League of Women Voters.

It seems self-defeating for women—and men—who call themselves feminists to advocate for policies that reduce the number of actual women and girls in athletic winning ranks, but such is the steamrolling power of fashionable gender ideology that says you’re the sex that you call yourself. For three years, it looked as if the claims of four talented and brave young women runners were steamrollered as well, ignored and belittled. Their victory in the Second Circuit isn’t just a legal and moral one. It’s a victory for biological reality.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.