Department of Education upholds girls’ rights to female-only sports

On May 15, 2020, the Department of Education’s Office for Civil Rights (OCR) issued a formal Letter of Impending Enforcement Action in connection with the Administrative complaint filed by Selina Soule, Alanna Smith, and Chelsea Mitchell, against the Connecticut Interscholastic Association Conference (CIAC) and several schools, after they were forced to compete against male athletes (i.e., boys). This is separate from the legal case that is currently in federal court, where the judge recently told the girls’ attorney that he is not allowed to use the word “male” when referring to students who are unquestionably male.

The letter makes a series of factual findings, and concludes: “Accordingly, OCR determined that the CIAC denied athletic benefits and opportunities to female student-athletes competing in interscholastic girls’ track in the state of Connecticut through the Revised Transgender Participation Policy, in violation of the regulation implementing Title IX of the Education Amendments of 1972 (Title IX), at 34 C.F.R. § 106.41(a).” The letter makes similar findings and conclusions with regard to the individual schools in question.

It goes on to conclude: “Based on the failure of the CIAC, Glastonbury, Bloomfield, Hartford, Cromwell, Canton, and Danbury to resolve the identified areas of noncompliance, OCR will either initiate administrative proceedings to suspend, terminate, or refuse to grant or continue and defer financial assistance to the CIAC, Glastonbury, Bloomfield, Hartford, Cromwell, Canton, and Danbury, or refer the cases to the U.S. Department of Justice for judicial proceedings to enforce any rights of the United States under its laws.  OCR will take further enforcement action after no fewer than 20 calendar days from the date of this letter if resolution of these complaints has not yet been reached.” Basically, OCR plans to either take away federal funding or refer the matter to the Justice Department.

This is huge news, but what does it all mean? There are several things happening with this case, outlined below.

The girls filed their administrative complaint last year with OCR. OCR conducted what appears to have been a thorough investigation. We learned earlier this month that OCR had found that the athletic association and the schools were in violation of Title IX, and that OCR had proposed some resolutions, all of which were rejected.

In the mean time, the girls decided to take legal action by filing a complaint in the U.S. District Court for the District of Connecticut against the CIAC and various other defendants. The male athletes filed a motion to intervene. During oral arguments concerning that motion, the judge told the girls’ attorney that the attorney would not be permitted to use the word “males” when referring to the male athletes, and further ordered the attorney to refer to the male athletes as “transgender females.” At some point, the CIAC filed a motion for the Court to bring in the Department of Education as a party to the action, which the Department opposes. 

We do not think at this time that the OCR finding that a Title IX violation occurred will formally affect the litigation. They are going along separate tracks, and the findings of an administrative agency do not bind the court. So the bottom line is that, unless something unforeseen happens, this finding will not likely affect the litigation, including the defendants’ motion to bring in the Department or the plaintiffs’ motion for the judge to disqualify himself. 

This is a huge victory in and of itself for these brave girls, and definitely something to celebrate! As to what will happen in the court case, we will just have to wait and see.