Education Law Notes  

In his profoundly moving “Elegy Written in a Country Churchyard,” the late-eighteenth-century English poet Thomas Gray warned: “The paths of glory lead but to the grave.”  In present-day Connecticut, however, these paths also lead to the United States Department of Education’s Office for Civil Rights [OCR].  In a seismic decision that could wreak havoc with Connecticut school districts, OCR has determined that the Connecticut Interscholastic Athletic Conference [CIAC] policy on transgender athletes violates Title IX of the Education Amendments of 1972.  The CIAC policy at issue permits students to compete on teams that correspond to the gender with which they identify rather than to their birth gender.  The CIAC has argued that its policy complies with Connecticut law, which prohibits discrimination against students on the basis of their gender identification. 

The OCR finding comes in response to a complaint that was filed by cisgender female high school athletes, “cisgender” referring to individuals who identify with their birth gender.  In addition to the CIAC, the complaint also named the Connecticut school districts in which either the complainants or the two transgender athletes in question attended school, the districts’ alleged transgression being simply that they were complying with the CIAC policy which, again, arises from Connecticut law.  In short, the complainants claimed that by following State law, the districts violated federal law, a contention with which OCR now appears to agree, creating a daunting legal conundrum for Connecticut school boards. 

The crux of the complaint was that the CIAC’s policy gave an unfair competitive advantage to athletes who were born male but who identified as females, one complainant asserting that “no matter how hard she trained, she felt that she could never be good enough to defeat” her transgender competitor.  As such, the complainant believed “that female student-athletes were missing out on great opportunities to succeed and felt that female student-athletes could be ‘completely eradicated from their own sports,’” a somewhat overheated prognosis.  In conjunction with this concern, the parents of one cisgender female athlete cited the dearth of public recognition afforded athletes who finish second or third, a perspective with which OCR concurred, writing that the CIAC’s policy has "denied female student-athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits." 

In addition to enumerating these ancillary benefits of winning athletic competitions, OCR boiled down its reasoning to the following conclusion:  “[F]emale student-athletes were denied the opportunity to compete in events that were exclusively female, whereas male student-athletes were able to compete in events that were exclusively male.”  Thus, “female student-athletes [were denied] athletic opportunities that were provided to male student-athletes.”  To support this conclusion, OCR charted at length how the cisgender and transgender students finished in head-to-head competitions.  Similarly, in the federal lawsuit that the complainants have filed against the same entities, the cisgender female athletes alleged that the two transgender sprinters had combined to win fifteen state indoor or outdoor championship track events since 2017.  Interestingly, during the current school year, one of the cisgender female athletes twice defeated one of the transgender athletes, winning two State indoor-track titles.  Just as interestingly, that did not figure into OCR’s substantive findings.

OCR’s conclusion raises interesting philosophical as well as legal questions.  Perhaps most noteworthy, by limiting the phrase “female student-athletes” to cisgender females, OCR seems to be giving notice that it considers gender to be based exclusively upon biology.  It also appears to subscribe to the atavistic notion that it is biologically impossible for any cisgender females to ever be as strong, or as fast, or as athletically capable as cisgender males.  In doing so, does it not risk transforming Title IX from a hammer to a crutch?  In other words, in the process of purportedly promoting equity for cisgender female athletes, is OCR not, in fact, exhibiting a certain condescension toward them?   

Philosophical ruminations aside, the practical consequences of OCR’s determination could be extremely draconian.  In its letter, OCR advised that it will "either initiate administrative proceedings to suspend, terminate, or refuse to grant or continue and defer financial assistance" to the CIAC and the named school districts, which is perhaps the most powerful sanction OCR can impose.  OCR also raised the possibility of referring the matter to the United States Department of Justice, “for judicial proceedings to enforce any rights of the United States under its laws.”  Thus, the CIAC and the school districts have been placed in the Kafkaesque position of possibly being stripped of federal funding and sued by the United States government simply because they followed Connecticut law. 

As noted, there is currently a federal lawsuit in the United States District Court tracking these same legal issues, and it will be interesting to see what – if anything -- the court makes of OCR’s decision, and whether there is any basis upon which the court could stay or otherwise intervene in the OCR matter.  In the interim, not only the CIAC and the named school districts, but by extension, all Connecticut school districts are now confronted with the extraordinarily difficult challenge of complying with a Connecticut law, the application of which OCR has found to violate Title IX.