U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:20−cv−00201−RNC

EFILE

Soule et al v. Connecticut Association of Schools, Inc. et al Assigned to: Judge Robert N. Chatigny Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/12/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Selina Soule a minor, by Bianca Stanescu, her mother

represented by Howard M. Wood , III Phelon, Fitzgerald & Wood 773 Main St. Manchester, CT 06040 860−643−1136 Email: howard.wood@pfwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Howard Fiorentino, Howard, Patrone, P.C. 773 Main Street Manchester, CT 06040 860−643−1136 Fax: 860−643−5773 Email: jim.howard@pfwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Waggoner Alliance Defending Freedom 440 First Street NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: kwaggoner@adflegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christiana M. Holcomb Alliance Defending Freedom 440 First Street NW Suite 600 Washington, DC 20001 202−393−8690 Email: cholcomb@adflegal.org ATTORNEY TO BE NOTICED

Jeff Shafer Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: jshafer@adflegal.org ATTORNEY TO BE NOTICED

Roger Greenwood Brooks Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 919−402−1758

Plaintiff Chelsea Mitchell a minor, by Christina Mitchell, her mother
Plaintiff Alanna Smith a minor, by Cheryl Radachowsky, her mother
Plaintiff Ashley Nicoletti a minor, by Jennifer Nicoletti, her mother

Email: rbrooks@adflegal.org ATTORNEY TO BE NOTICED
represented by Howard M. Wood , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Waggoner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christiana M. Holcomb (See above for address) ATTORNEY TO BE NOTICED
Jeff Shafer (See above for address) ATTORNEY TO BE NOTICED
Roger Greenwood Brooks (See above for address) ATTORNEY TO BE NOTICED
represented by Howard M. Wood , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Waggoner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christiana M. Holcomb (See above for address) ATTORNEY TO BE NOTICED
Jeff Shafer (See above for address) ATTORNEY TO BE NOTICED
Roger Greenwood Brooks (See above for address) ATTORNEY TO BE NOTICED
represented by Howard M. Wood , III (See above for address) LEAD ATTORNEY

V. Defendant Connecticut Association of Schools, Inc. doing business as Connecticut Interscholastic Athletic Conference
Defendant Bloomfield Public Schools Board of Education

ATTORNEY TO BE NOTICED
Kristen Waggoner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roger Greenwood Brooks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Linda L. Yoder Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103 860−916−7156 Email: lyoder@goodwin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Joseph Murphy Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103 860−251−5950 Fax: 860−251−5316 Email: pjmurphy@goodwin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler Bischoff Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103 860−251−5812 Email: tbischoff@goodwin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Mott Smith Ford Harrison LLP CityPlace II 185 Asylum Street Suite 610 Hartford, CT 06103 860−740−1358 Email: esmith@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johanna G. Zelman Ford Harrison, LLP CityPlace II 185 Asylum Street Suite 610 Hartford, CT 06103

Defendant Cromwell Public Schools Board of Education
Defendant Glastonbury Public Schools Board of Education
Defendant Canton Public Schools Board of Education
Defendant Danbury Public Schools Board of Education

860−740−1361 Fax: 860−740−1393 Email: jzelman@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mohammad Shihabi FordHarrison LLP 60 East 42nd Street Ste 51st Floor New York, NY 10165 202−527−8407 Email: mshihabi@fordharrison.com (Inactive) ATTORNEY TO BE NOTICED
represented by Elizabeth Mott Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johanna G. Zelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mohammad Shihabi (See above for address) ATTORNEY TO BE NOTICED
represented by David S. Monastersky Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114−1190 860−249−1361 Fax: 860−249−7665 Email: dmonastersky@hl−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David S. Monastersky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda L. Yoder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Joseph Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler Bischoff (See above for address) LEAD ATTORNEY

V. Intervenor Defendant Andraya Yearwood

ATTORNEY TO BE NOTICED
represented by Dan Barrett American Civil Liberties Union − CT 765 Asylum Ave., 1st Floor Hartford, CT 06105 860−471−8471 Email: dbarrett@acluct.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chase Strangio New York 125 Broad St. Ste 18th Fl. New York New York, NY 10004 212−284−7320 Email: cstrangio@aclu.org ATTORNEY TO BE NOTICED
Galen Sherwin Aclu 125 Broad Street Ste 18th Floor New York, NY 10004 212−519−7819 Fax: 212−549−2650 Email: gsherwin@aclu.org ATTORNEY TO BE NOTICED
James D. Esseks American Civil Liberties Union Foundation 125 Broad Street Ste 18th Floor New York, NY 10004 212−549−2627 Fax: 212−549−2650 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED
Joshua A. Block American Civil Liberties Union 125 Broad Street Floor 18 New York, NY 10004 212−549−2593 Email: jblock@aclu.org ATTORNEY TO BE NOTICED
Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street Ste 18th Floor New York, NY 10004 212−519−7823 Email: lkaley@aclu.org ATTORNEY TO BE NOTICED

Intervenor Defendant Thania Edwards
Intervenor Defendant Commission on Human Rights and Opportunities
Interested Party U.S. Department of Education
Interested Party Betsy DeVos Interested Party U.S. Department of Education Office for Civil Rights

represented by Dan Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chase Strangio (See above for address) ATTORNEY TO BE NOTICED
Galen Sherwin (See above for address) ATTORNEY TO BE NOTICED
James D. Esseks (See above for address) ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) ATTORNEY TO BE NOTICED
Lindsey Kaley (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Roberts Commission on Human Rights & Opportunities 450 Columbus Blvd. Suite 2 Hartford, CT 06103 860−541−4715 Email: michael.e.roberts@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joshua E Gardner DOJ−Civ Poc Agostinho, Jean 1100 L St., N.W. Ste 12200 Washington, DC 20530 202−305−7583 Email: joshua.e.gardner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joshua E Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joshua E Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Amicus United States

represented by Matthew Donnelly DOJ−Crt U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 202−616−2788 Email: matthew.donnelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/12/2020 02/12/2020 02/12/2020
02/12/2020 02/12/2020
02/12/2020
02/12/2020 02/12/2020
02/12/2020 02/12/2020
02/12/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $400 receipt number ACTDC−5691204.), filed by Selina Soule, Alanna Smith, Chelsea Mitchell. (Attachments: # 1 Civil Cover Sheet)(Wood, Howard) (Entered: 02/12/2020)
Request for Clerk to issue summons as to All Defendants. (Wood, Howard) (Entered: 02/12/2020)
2 MOTION for Attorney(s) Roger G. Brooks to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691797) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Affidavit of Roger G. Brooks, # 2 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
Judge Robert N. Chatigny added. (Nuzzi, Tiffany) (Entered: 02/12/2020)
3 MOTION for Attorney(s) Jeffrey A. Shafer to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691855) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Affidavit of Jeffrey A. Shaffer, # 2 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
4 MOTION for Attorney(s) Christiana M. Holcomb to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691868) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Affidavit of Christiana M. Holcomb, # 2 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
5 Order on Pretrial Deadlines: Amended Pleadings due by 4/12/2020. Discovery due by 8/13/2020. Dispositive Motions due by 9/17/2020. Signed by Clerk on 02/12/2020.(Murphy, Tatihana) (Entered: 02/12/2020)
6 ELECTRONIC FILING ORDER FOR COUNSEL − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Robert N. Chatigny on 02/12/2020.(Murphy, Tatihana) (Entered: 02/12/2020)
7 STANDING PROTECTIVE ORDER Signed by Judge Robert N. Chatigny on 02/12/2020.(Murphy, Tatihana) (Entered: 02/12/2020)
8 MOTION for Attorney(s) Kristen K. Waggoner to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5692198) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Affidavit of Kristen K. Waggoner, # 2 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
9 NOTICE TO COUNSEL/SELF−REPRESENTED PARTIES : Counsel or self−represented parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 5 Order on Pretrial Deadlines, 3 MOTION for Attorney(s) Jeffrey A. Shafer to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691855) filed by Chelsea Mitchell, Alanna Smith, Selina Soule, 6 Electronic Filing Order, 4 MOTION for Attorney(s) Christiana M. Holcomb to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691868) filed by Chelsea Mitchell, Alanna Smith, Selina Soule, 2

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MOTION for Attorney(s) Roger G. Brooks to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691797) filed by Chelsea Mitchell, Alanna Smith, Selina Soule, 8 MOTION for Attorney(s) Kristen K. Waggoner to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5692198) filed by Chelsea Mitchell, Alanna Smith, Selina Soule, 7 Standing Protective Order, 1 Complaint filed by Chelsea Mitchell, Alanna Smith, Selina Soule Signed by Clerk on 02/12/2020.(Murphy, Tatihana) (Entered: 02/12/2020)
10 ORDER granting 2 Motion to Appear Pro Hac Vice as to Roger G. Brooks. Certificate of Good Standing due by 4/12/2020. Signed by Clerk on 02/12/2020. (Murphy, Tatihana) (Entered: 02/12/2020)
11 ORDER granting 3 Motion to Appear Pro Hac Vice as to Jeffrey A. Shafer. Certificate of Good Standing due by 4/12/2020.. Signed by Clerk on 02/12/2020. (Murphy, Tatihana) (Entered: 02/12/2020)
12 MOTION for Preliminary Injunction by Chelsea Mitchell, Alanna Smith, Selina Soule.Responses due by 3/4/2020 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
13 ORDER granting 4 Motion to Appear Pro Hac Vice as to Christiana M. Holcomb. Certificate of Good Standing due by 4/12/2020. Signed by Clerk on 02/12/2020. (Murphy, Tatihana) (Entered: 02/12/2020)
14 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education* with answer to complaint due within *21* days. Attorney *Howard M. Wood, III* *Phelon, Fitzgerald & Wood* *773 Main St.* *Manchester, CT 06040*. (Murphy, Tatihana) (Entered: 02/12/2020)
15 MOTION to Expedite Hearing to Show Cause and Briefing Schedule by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Text of Proposed Order)(Wood, Howard) (Entered: 02/12/2020)
16 MOTION for Attorney(s) Kristen K. Waggoner to be Admitted Pro Hac Vice by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Affidavit of Kristen Waggoner, # 2 Text of Proposed Order)(Wood, Howard) (Entered: 02/13/2020)
17 ORDER granting 16 Motion to Appear Pro Hac Vice Certificate of Good Standing due by 4/14/2020. Signed by Clerk on 2/14/2020. (Murphy, Tatihana) (Entered: 02/14/2020)
18 ORDER denying as moot 8 Motion to Appear pro hac vice in light of ECF No.17. Signed by Judge Robert N. Chatigny on 2/14/2020. (Rickevicius, L.) (Entered: 02/14/2020)
19 NOTICE of Appearance by Dan Barrett on behalf of Andraya Yearwood, Thania Edwards (Barrett, Dan) (Entered: 02/14/2020)
20 OBJECTION re 15 MOTION to Expedite Hearing to Show Cause and Briefing Schedule filed by Thania Edwards, Andraya Yearwood. (Barrett, Dan) (Entered: 02/14/2020)
21 NOTICE of Appearance by Jeff Shafer on behalf of Chelsea Mitchell, Alanna Smith, Selina Soule (Shafer, Jeff) (Entered: 02/14/2020)
22 NOTICE of Appearance by Roger Greenwood Brooks on behalf of Chelsea Mitchell, Alanna Smith, Selina Soule (Brooks, Roger) (Entered: 02/14/2020)
23 NOTICE of Appearance by Christiana M. Holcomb on behalf of Chelsea Mitchell, Alanna Smith, Selina Soule (Holcomb, Christiana) (Entered: 02/14/2020)
24 REPLY to Response to 15 MOTION to Expedite Hearing to Show Cause and Briefing Schedule filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Howard, James) (Entered: 02/18/2020)

02/19/2020 02/20/2020
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25 NOTICE of Appearance by Kristen Waggoner on behalf of Chelsea Mitchell, Alanna Smith, Selina Soule (Waggoner, Kristen) (Entered: 02/19/2020)
26 SUMMONS Returned Executed by Alanna Smith, Chelsea Mitchell, Selina Soule. Bloomfield Public Schools Board of Education served on 2/18/2020, answer due 3/10/2020; Canton Public Schools Board of Education served on 2/18/2020, answer due 3/10/2020; Connecticut Association of Schools, Inc. served on 2/19/2020, answer due 3/11/2020; Cromwell Public Schools Board of Education served on 2/19/2020, answer due 3/11/2020; Danbury Public Schools Board of Education served on 2/19/2020, answer due 3/11/2020; Glastonbury Public Schools Board of Education served on 2/18/2020, answer due 3/10/2020. (Howard, James) (Entered: 02/20/2020)
27 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Conference Re: Next Steps set for 2/27/2020 at 2:00 PM before Judge Robert N. Chatigny. Plaintiffs' counsel will initiate the call to chambers at 860−240−2629 (conference line only) with all counsel on the line. (Rickevicius, L.) (Entered: 02/20/2020)
28 CERTIFICATE OF GOOD STANDING re 4 MOTION for Attorney(s) Christiana M. Holcomb to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691868) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Holcomb, Christiana) (Entered: 02/20/2020)
29 CERTIFICATE OF GOOD STANDING re 3 MOTION for Attorney(s) Jeffrey A. Shafer to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691855) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Shafer, Jeff) (Entered: 02/20/2020)
30 CERTIFICATE OF GOOD STANDING re 16 MOTION for Attorney(s) Kristen K. Waggoner to be Admitted Pro Hac Vice by Chelsea Mitchell, Alanna Smith, Selina Soule. (Waggoner, Kristen) (Entered: 02/20/2020)
31 NOTICE of Appearance by Peter Joseph Murphy on behalf of Connecticut Association of Schools, Inc. (Murphy, Peter) (Entered: 02/20/2020)
32 NOTICE of Appearance by Linda L. Yoder on behalf of Connecticut Association of Schools, Inc. (Yoder, Linda) (Entered: 02/20/2020)
33 NOTICE of Appearance by Johanna G. Zelman on behalf of Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education (Zelman, Johanna) (Entered: 02/21/2020)
34 NOTICE of Appearance by Elizabeth Mott Smith on behalf of Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education (Smith, Elizabeth) (Entered: 02/21/2020)
35 MOTION for Attorney(s) Chase Strangio, Joshua Block, James Esseks, Lindsey Kaley, and Galen Sherwin to be Admitted Pro Hac Vice (paid $375 PHV fee; receipt number ACTDC−5707968) by Thania Edwards, Andraya Yearwood. (Barrett, Dan) (Entered: 02/21/2020)
36 MOTION to Intervene as Defendants by Thania Edwards, Andraya Yearwood.Responses due by 3/13/2020 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Barrett, Dan) (Entered: 02/21/2020)
37 NOTICE of Appearance by David S. Monastersky on behalf of Canton Public Schools Board of Education, Glastonbury Public Schools Board of Education (Monastersky, David) (Entered: 02/21/2020)
38 ORDER granting 35 Motion to Appear Pro Hac Vice as to Chase Strangio, Joshua Block, James Esseks,Lindsey Kaley, and Galen Sherwin, Certificate of Good Standing due by 4/25/2020. Signed by Clerk on 2/25/2020. (Murphy, Tatihana) (Entered: 02/25/2020)
39 CERTIFICATE OF GOOD STANDING re 2 MOTION for Attorney(s) Roger G. Brooks to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5691797) by Chelsea Mitchell, Alanna Smith, Selina Soule. (Brooks, Roger) (Entered: 02/25/2020)

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40 NOTICE of Appearance by Galen Sherwin on behalf of Thania Edwards, Andraya Yearwood (Sherwin, Galen) (Entered: 02/26/2020)
41 NOTICE of Appearance by Michael Roberts on behalf of Commission on Human Rights and Opportunities (Roberts, Michael) (Entered: 02/26/2020)
42 NOTICE of Appearance by Joshua A. Block on behalf of Thania Edwards, Andraya Yearwood (Block, Joshua) (Entered: 02/26/2020)
43 MOTION to Intervene by Commission on Human Rights and Opportunities.Responses due by 3/18/2020 (Attachments: # 1 Memorandum in Support of Motion to Intervene, # 2 Exhibit)(Roberts, Michael) (Entered: 02/26/2020)
44 NOTICE of Appearance by Chase Strangio on behalf of Thania Edwards, Andraya Yearwood (Strangio, Chase) (Entered: 02/26/2020)
45 NOTICE of Appearance by James D. Esseks on behalf of Thania Edwards, Andraya Yearwood (Esseks, James) (Entered: 02/26/2020)
46 NOTICE of Appearance by Lindsey Kaley on behalf of Thania Edwards, Andraya Yearwood (Kaley, Lindsey) (Entered: 02/26/2020)
47 Memorandum in Opposition re 36 MOTION to Intervene as Defendants filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Exhibit A)(Wood, Howard) (Entered: 02/26/2020)
48 NOTICE of Appearance by Peter Joseph Murphy on behalf of Danbury Public Schools Board of Education (Murphy, Peter) (Entered: 02/27/2020)
49 NOTICE of Appearance by Linda L. Yoder on behalf of Danbury Public Schools Board of Education (Yoder, Linda) (Entered: 02/27/2020)
50 EXHIBIT A − CORRECTED by Chelsea Mitchell, Alanna Smith, Selina Soule re 47 Memorandum in Opposition to Motion. (Wood, Howard) (Entered: 02/27/2020)
51 ORDER: As discussed on the telephonic status conference, the preliminary schedule is as follows. The individual proposed intervenors will file a reply brief in support of their motion to intervene on or before March 2, 2020. The CHRO will file a supplemental brief in support of its motion to intervene on or before March 2, 2020; plaintiffs will file an opposition brief on or before March 6, 2020; and the CHRO will file a reply brief on or before March 9, 2020. Defendants will file a brief outlining their positions on the issues of the case on or before March 13, 2020. The parties will then meet and confer in person at the offices of Shipman & Goodwin LLP on March 19, 2020 at 2:00 PM to discuss the needs of the case and propose a schedule. Signed by Judge Robert N. Chatigny on 2/27/2020.(Gazzola, Mario) (Entered: 02/27/2020)
52 Minute Entry for proceedings held before Judge Robert N. Chatigny: Telephone Status Conference re Preliminary Schedule held on 2/27/2020. Total Time: 1 hour and 9 minutes. (Court Reporter Warner, D.) (Pipech, L.) (Entered: 02/28/2020)
53 REPLY to Response to 36 MOTION to Intervene as Defendants filed by Thania Edwards, Andraya Yearwood. (Strangio, Chase) (Entered: 02/28/2020)
54 Supplemental EXHIBIT by Commission on Human Rights and Opportunities re 43 MOTION to Intervene . (Roberts, Michael) (Entered: 03/02/2020)
55 Memorandum in Support re 36 MOTION to Intervene as Defendants filed by Connecticut Association of Schools, Inc.. (Murphy, Peter) (Entered: 03/02/2020)
56 Memorandum in Support re 36 MOTION to Intervene as Defendants filed by Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education. (Zelman, Johanna) (Entered: 03/03/2020)
57 RESPONSE re 56 Memorandum in Support of Motion, 55 Memorandum in Support of Motion by Chelsea Mitchell, Alanna Smith, Selina Soule. (Wood, Howard) (Entered: 03/04/2020)
58 MOTION for Extension of Time until April 20, 2020 to file an answer or otherwise respond to Complaint 1 Complaint by Bloomfield Public Schools Board of Education,

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Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education. (Zelman, Johanna) (Entered: 03/05/2020)
59 Memorandum in Opposition re 58 MOTION for Extension of Time until April 20, 2020 to file an answer or otherwise respond to Complaint 1 Complaint filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Wood, Howard) (Entered: 03/06/2020)
60 Memorandum in Opposition to Motion of the CHRO re 43 MOTION to Intervene filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Wood, Howard) (Entered: 03/06/2020)
61 REPLY to Response to 43 MOTION to Intervene filed by Commission on Human Rights and Opportunities. (Roberts, Michael) (Entered: 03/09/2020)
62 ORDER granting 58 Motion for Extension of Time to 4/20/2020 to file an answer or otherwise respond to the lawsuit filed by Plaintiffs. Signed by Judge Robert N. Chatigny on 3/11/2020. (Rickevicius, L.) (Entered: 03/11/2020)
Answer deadline updated for Bloomfield Public Schools Board of Education to 4/20/2020; Canton Public Schools Board of Education to 4/20/2020; Connecticut Association of Schools, Inc. to 4/20/2020; Cromwell Public Schools Board of Education to 4/20/2020; Danbury Public Schools Board of Education to 4/20/2020; Glastonbury Public Schools Board of Education to 4/20/2020. (Rickevicius, L.) (Entered: 03/11/2020)
63 Joint NOTICE by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education (Murphy, Peter) (Entered: 03/13/2020)
64 NOTICE by Chelsea Mitchell, Alanna Smith, Selina Soule Position Re: Anonymity of minor (Howard, James) (Entered: 03/17/2020)
65 Joint MOTION clarification on Proposed Intervenors' participation in meet and confer on 3/19/2020 by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Thania Edwards, Glastonbury Public Schools Board of Education, Andraya Yearwood.Responses due by 4/7/2020 (Zelman, Johanna) (Entered: 03/17/2020)
66 Joint MOTION for Clarification CORRECTED by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Commission on Human Rights and Opportunities, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Thania Edwards, Glastonbury Public Schools Board of Education, Andraya Yearwood. (Zelman, Johanna) (Entered: 03/18/2020)
67 Memorandum in Opposition re 65 Joint MOTION clarification on Proposed Intervenors' participation in meet and confer on 3/19/2020 filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Brooks, Roger) (Entered: 03/18/2020)
68 ORDER granting in part and denying in part 65 Motion. Insofar as the motion seeks clarification of the right of proposed intervenor−defendants Yearwood and Edwards to participate in tomorrow's conference, it is granted; insofar as it seeks an order permitting their counsel to actively participate in the conference in the same manner and to the same extent as counsel for the existing parties (i.e. as if their motion to intervene had already been granted unconditionally), it is denied. At this preliminary stage, and for purposes of this conference, the proposed intervenors' legal interests are more than adequately represented by counsel for the defendants, whose position on the matters to be discussed appears to closely align with that of the proposed intervenors in all material respects. This order does not exclude counsel from attending the conference. Proposed intervenors' counsel may attend by telephone as observers, just as counsel would be able to do if the conference were conducted in open court. Of course, proposed intervenors' counsel is free to speak with defendants' counsel during

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any breaks, again just as counsel would be able to do if the conference were in open court. The same is true of counsel for proposed intervenor−defendant CHRO. At the outset of the conference, CIAC should provide as much information as possible about the possibility that spring athletics will have to be cancelled due to the novel coronavirus pandemic, and the parties should then discuss what the impact of that would be on this case. So ordered. Signed by Judge Robert N. Chatigny on 3/18/20. (Chatigny, Robert) (Entered: 03/18/2020)
69 EXHIBIT by Chelsea Mitchell, Alanna Smith, Selina Soule re 64 Notice (Other). (Brooks, Roger) (Entered: 03/18/2020)
70 NOTICE of Appearance by James H. Howard on behalf of Chelsea Mitchell, Alanna Smith, Selina Soule (Howard, James) (Entered: 03/19/2020)
71 MOTION for Extension of Time until March 27, 2020 to file report concerning results of meet and confer by Chelsea Mitchell, Alanna Smith, Selina Soule. (Brooks, Roger) (Entered: 03/19/2020)
72 ORDER granting 71 Consent Motion for Extension of Time to 3/27/2020 to report to the Court concerning the results of discussions between the parties. Signed by Judge Robert N. Chatigny on 3/20/2020. (Rickevicius, L.) (Entered: 03/20/2020)
73 ORDER finding as moot 66 Motion for Clarification. Signed by Judge Robert N. Chatigny on 3/20/20. (Chatigny, Robert) (Entered: 03/20/2020)
74 NOTICE of Appearance by Matthew Donnelly on behalf of United States (Donnelly, Matthew) (Entered: 03/24/2020)
75 NOTICE by United States of Statement of Interest (Donnelly, Matthew) (Entered: 03/24/2020)
76 CERTIFICATE OF GOOD STANDING re 35 MOTION for Attorney(s) Chase Strangio, Joshua Block, James Esseks, Lindsey Kaley, and Galen Sherwin to be Admitted Pro Hac Vice (paid $375 PHV fee; receipt number ACTDC−5707968) by Thania Edwards, Andraya Yearwood. (Kaley, Lindsey) (Entered: 03/26/2020)
77 Joint RESPONSE by Chelsea Mitchell, Alanna Smith, Selina Soule (From Meet−and−Confer Conference). (Brooks, Roger) (Entered: 03/27/2020)
78 Joint RESPONSE by Thania Edwards, Andraya Yearwood and all parties regarding conference on conditions of intervention. (Barrett, Dan) (Entered: 03/27/2020)
79 CASE MANAGEMENT ORDER: The Court thanks counsel for the Parties' Joint Response From Meet−And−Confer Conference. The parties' respective proposals reflect due consideration of numerous issues in a compressed timeframe, which is appreciated. Based on the latest available information concerning the current status of the pandemic in Connecticut, and its probable future course, it seems all but certain that school will not resume before the fall term. Accordingly, having had the benefit of the parties' joint report, and mindful of the proposals it contains, I think it will be most helpful if counsel confer and submit a supplemental Joint Response, on or before April 6, 2020, with regard to the following: assuming CIAC will soon be forced to cancel spring athletics due to the pandemic, what issues will still need to be adjudicated in this case, in what order should the issues be taken up, and what schedule should be adopted for adjudicating the issues? For example, what impact will cancellation of the spring season have on the plaintiffs' claims for declaratory and injunctive relief? If plaintiffs intend to press claims for declaratory and injunctive relief notwithstanding cancellation of the spring season, what steps will be required to adjudicate the claims, what would be the best sequence for those steps, and what schedule should be adopted for completing them? If, as has been reported, plaintiffs intend to seek damages in any event, what steps will be required to adjudicate any such claims, what would be the optimal sequence for those steps, and what schedule should be adopted for completing them? For example, would defendants seek to file a pre−discovery motion to dismiss? Assuming such a motion were to be filed, what schedule would counsel suggest for briefing and arguing the motion. Counsel should note that the Court is in the process of making arrangements to conduct proceedings remotely during the lockdown, which is now expected to last some months. If counsel need more time to confer and submit the Supplemental Joint Response, they may request an extension of the April 6 deadline

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by calling chambers (i.e. without the need for filing a formal motion). So ordered. Signed by Judge Robert N. Chatigny on 3/28/20.(Chatigny, Robert) (Entered: 03/28/2020)
80 MOTION to Expedite Order to Show Cause Hearing by Chelsea Mitchell, Alanna Smith, Selina Soule. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Brooks, Roger) (Entered: 04/06/2020)
81 Joint RESPONSE From Meet−and−Confer Concerning Case Scheduling in the Event of Complete Cancellation of Spring Season filed by Chelsea Mitchell, Alanna Smith, Selina Soule. (Brooks, Roger) (Entered: 04/06/2020)
82 ORDER denying 80 Motion to Expedite. Plaintiffs' motion to expedite asks the Court to proceed with their motion for a preliminary injunction as though high school track meets, which have been indefinitely suspended due to the coronavirus pandemic, will be conducted before the fall. The motion relies on CIAC's decision to "hold off as long as possible before cancelling all spring sport experiences." Plaintiffs' desire to run track this spring is perfectly understandable, as is CIAC's wish to avoid disappointing student athletes like the plaintiffs until it has no alternative. Realistically, however, the possibility that track meets will be held this spring (or even this summer) appears to be remote at best, unfortunately. The coronavirus pandemic has created a national emergency and resulted in a lockdown across Connecticut with all schools and nonessential businesses closed. People are expected to remain in their homes and are prohibited from gathering in public. How long these extraordinary and unprecedented measures will have to remain in place in order to protect public health is unknown and unknowable. However, it would be very surprising to me if responsible public officials in Connecticut were to reopen schools and conduct sporting events this spring when the highly contagious, potentially lethal coronavirus is expected to continue to be present throughout the state. If spring sports must be cancelled because of the ongoing pandemic, which is by far the most likely outcome at this point, expedited treatment of the plaintiffs' motion for preliminary injunction is unwarranted. The motion for a preliminary injunction is predicated on the plaintiffs' claim that they have a legal right to run in track events for girls this spring without having to compete against transgender girls. If no track events can be held this spring due to the pandemic, plaintiffs have no need for such a preliminary injunction. Any claims for other injunctive relief or damages that plaintiffs wish to press in this litigation can be taken up in accordance with a schedule that gives all concerned adequate time to address the various issues of law and fact discussed in the parties' submissions concerning scheduling. A tailored scheduling order that aims to achieve that objective will be entered today. Accordingly, the motion to expedite is hereby denied. So ordered. Signed by Judge Robert N. Chatigny on 4/8/20. (Chatigny, Robert) (Entered: 04/08/2020)
83 SCHEDULING ORDER: Please read full text of attached Order for details. Answer due 4/27/2020; Discovery due by 12/31/2020; Initial Status Report due by 5/8/2020; Prefiling Conference Request Re: Rule 12 motions due by 4/20/2020; Prefiling Conference Request Re: Dispositive motions due 11/16/2020; Settlement Conference 1/2021; Trial Ready Date 4/30/2021; Trial Brief due by 3/20/2021. Signed by Judge Robert N. Chatigny on 4/8/2020. (Rickevicius, L.) (Entered: 04/08/2020)
84 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status Conference set for 5/14/2020 at 10:00 AM before Judge Robert N. Chatigny. Please use the following dial in information for the call. Call in− 866−434−5269; Access Code: 8189198# (Rickevicius, L.) (Entered: 04/08/2020)
85 MOTION for Extension of Time until July 1, 2020 to file certificates of good standing by Thania Edwards, Andraya Yearwood. (Barrett, Dan) (Entered: 04/10/2020)
86 ORDER granting 85 Motion for Extension of Time. Signed by Judge Robert N. Chatigny on 4/11/20. (Chatigny, Robert) (Entered: 04/11/2020)
87 MOTION for intervention Order by Thania Edwards, Andraya Yearwood. (Barrett, Dan) (Entered: 04/13/2020)

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88 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Conference Re: 36 Motion to Intervene and 43 Motion to Intervene set for 4/16/2020 at 10:00 AM before Judge Robert N. Chatigny. Please use the following call in information: Call in 866−434−5269; access code 8189198#. (Rickevicius, L.) (Entered: 04/14/2020)
90 Minute Entry. Proceedings held before Judge Robert N. Chatigny: taking under advisement 36 Motion to Intervene; taking under advisement 43 Motion to Intervene; Motion Hearing held on 4/16/2020 re 43 MOTION to Intervene filed by Commission on Human Rights and Opportunities, 36 MOTION to Intervene as Defendants filed by Thania Edwards, Andraya Yearwood. Total Time: 1 hour and 30 minutes(Court Reporter Darlene Warner.) (Bozek, M.) (Entered: 04/17/2020)
89 AMENDED COMPLAINT against Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education, filed by Alanna Smith, Chelsea Mitchell, Selina Soule.(Brooks, Roger) (Entered: 04/17/2020)
91 Joint MOTION for Joinder of U.S. Department of Education by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Murphy, Peter) (Entered: 04/20/2020)
92 ORDER granting 36 Motion to Intervene; finding as moot 87 Motion for Order. The only seriously contested issue with regard to the proposed intervenors (PIs) motion to intervene as of right under Fed. R. Civ. P. 24(a) is whether they have overcome the presumption that their interests are adequately represented by the existing defendants. I conclude that the presumption has been overcome. Inadequacy of representation may be established when a would−be defendant seeks to raise a defense that will not be raised otherwise. See Meriwether v. Trustees of Shawnee State Univ., No. 1:18−cv−753, 2019 WL 2052110, *12 (S.D. Ohio May 9, 2010) (in suit by professor challenging colleges antidiscrimination policy, intervention granted to transgender student and LBTG student advocacy group because they intended to assert arguments based on the Equal Protection Clause, Title IX and the ADA that the college was required to treat transgender students in accordance with their gender identity, an argument the college had not made in its motion to dismiss and was unlikely to make, thus overcoming the presumption of adequacy of representation). Here, the PIs seek to raise a defense that the relief sought by the complaint would constitute impermissible discrimination against them in violation of Title IX and the Equal Protection Clause. Based on the defendants written submissions and the comments of defense counsel during the recent telephone conference, none of the defendants adequately represents the interests of the PIs in defending the action on this basis. CIAC intends to defend on the ground that it is not subject to suit under Title IX, that state law controls, and that the definition of sex in Title IX is ambiguous. Bloomfield and Cromwell intend to defend on the ground that they owe no Title IX obligations to students, like the plaintiffs, who do not attend their schools. The remaining defendants, Danbury, Glastonbury and Canton, have disclaimed any interest in advocating for the rights of students, like the PIs, who do not attend their schools. Bloomfield and Cromwell may argue that the relief sought would violate Title IX but they will not argue that it would violate the Equal Protection Clause. Nor will any of the other defendants. Accordingly, I find that the interests of the PIs are not so similar to those of the existing defendants that adequate representation of their interests is assured. See id.; cf. Christa McAuliffe Intermediate School PTO v. de Blasio, No. 18 Civ. 11657(ER), 2020 WL 1432213, *5 (S.D.N.Y. March 24, 2020) (in action by Asian−American groups challenging changes to program governing admission to Citys selective high schools, intervention as of right granted to students seeking to defend changes based on the programs history of discrimination, a defense the existing defendants would not make). Permissive intervention is proper in any event because the PIs have a strong personal interest in the subject matter of the case and they are in a position to make a valuable contribution to the Courts understanding of the case. See New York v. U.S. Dept. of Health and Human Services, 2019 WL 3531960, *4 (S.D.N.Y. Aug. 2, 2019) (in action by states challenging HHS rule allowing medical personnel to abstain from providing services due to religious beliefs, motion for intervention as of right by medical personnel

04/22/2020 04/22/2020

seeking to defend the rule denied but permissive intervention granted); United States v. New York City Housing Authority, 326 F.R.D. 411, 417−18 (S.D.N.Y. 2018) (in action against to redress health and safety violations by Housing Authority, motion to intervene as of right by tenant organizations denied but permissive intervention granted). Moreover, they have expressed a willingness to accept conditions on their participation that will avoid unduly burdening the existing the parties or the Court. Accordingly, the motion is hereby granted. So ordered. Signed by Judge Robert N. Chatigny on 4/22/2020. (Gazzola, Mario) (Entered: 04/22/2020)
93 ORDER [CORRECTED TEXT ORDER 92] Granting (36) Motion to Intervene, finding as moot (87) Motion For Order. The only seriously contested issue with regard to the proposed intervenors' (PIs) motion to intervene as of right under Fed. R. Civ. P. 24(a) is whether they have overcome the presumption that their interests are adequately represented by the existing defendants. I conclude that the presumption has been overcome. Inadequacy of representation may be established when a would−be defendant seeks to raise a defense that will not be raised otherwise. See Meriwether v. Trustees of Shawnee State Univ., No. 1:18−cv−753, 2019 WL 2052110, *12 (S.D. Ohio May 9, 2010)(in suit by professor challenging college's antidiscrimination policy, intervention granted to transgender student and LGBT student advocacy group because they intended to assert arguments based on the Equal Protection Clause, Title IX and the ADA that the college was required to treat transgender students in accordance with their gender identity, an argument the college had not made in its motion to dismiss and was unlikely to make, thus overcoming the presumption of adequacy of representation). Here, the PIs seek to raise a defense that granting the relief sought by the complaint would constitute impermissible discrimination against them in violation of Title IX and the Equal Protection Clause. Based on the defendants' written submissions and the comments of defense counsel during the recent telephone conference, none of the defendants adequately represents the interests of the PIs in defending the action on this basis. CIAC intends to defend on the ground that it is not subject to suit under Title IX, state law controls, and the term "sex" in Title IX is ambiguous. Bloomfield and Cromwell intend to defend on the ground that they owe no Title IX obligations to students, like the plaintiffs, who do not attend their schools. The remaining defendants, Danbury, Glastonbury and Canton, have disclaimed any interest in advocating for the rights of students, like the PIs, who do not attend their schools. Bloomfield and Cromwell may argue that granting the relief sought would violate Title IX but they will not argue that it would violate the Equal Protection Clause. Nor will any of the other defendants. Accordingly, I find that the interests of the PIs are not so similar to those of the existing defendants that adequate representation of their interests is assured. See id.; cf. Christa McAuliffe Intermediate School PTO v. de Blasio, No. 18 Civ. 11657(ER), 2020 WL 1432213, *5 (S.D.N.Y. March 24, 2020)(in action by Asian−American groups challenging changes to program governing admission to City's selective high schools, intervention as of right granted to students seeking to defend changes based on the program's history of discrimination, a defense the existing defendants would not make). Permissive intervention is proper in any event because the PIs have a strong personal interest in the subject matter of the case and they are in a position to make a valuable contribution to the Court's understanding of the case. See New York v. U.S. Dept. of Health and Human Services, 2019 WL 3531960, *4 (S.D.N.Y. Aug. 2, 2019)(in action by states challenging HHS rule allowing medical personnel to abstain from providing services that conflicted with their beliefs, motion for intervention as of right by medical personnel seeking to defend the rule denied but permissive intervention granted); United States v. New York City Housing Authority, 326 F.R.D. 411, 417−18 (S.D.N.Y. 2018)(in action to redress health and safety violations by Housing Authority, motion to intervene as of right by tenant organizations denied but permissive intervention granted). Moreover, the PIs have expressed a willingness to accept conditions on their participation that will avoid unduly burdening the existing parties or the Court. Accordingly, the motion is hereby granted. So ordered. Signed by Judge Robert N. Chatigny on 4/22/80.(Chatigny, Robert) (Entered: 04/22/2020)
94 TRANSCRIPT of Proceedings: Telephone Conference held on 04.16.20 before Judge Robert N. Chatigny. Court Reporter: Darlene A. Warner. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is

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filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 5/13/2020. Redacted Transcript Deadline set for 5/23/2020. Release of Transcript Restriction set for 7/21/2020. (Warner, D.) (Entered: 04/22/2020)
95 ORDER granting 43 Motion to Intervene with regard to alternative request for permissive intervention. Fed.R.Civ.P. 24(b) provides that a state agency may be permitted to intervene when a party's claim or defense is based on a statute or executive order administered by the agency. See generally Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1912 (2020 Update). That is the situation here: in defending against the plaintiffs' claims, at least some of the defendants (if not all) can be expected to rely on the antidiscrimination provisions in Conn. Gen. Stat. § 10−15c(a) and Conn. Exec. Order 56 (Feb. 23, 2017), which are enforced by CHRO. CHRO has a particular interest in intervening in this case because the plaintiffs are expected to argue that Title IX renders § 10−15c(a) and Exec. Order 56 invalid and unenforceable. See ECF No. 60 at 5−6 (citing U.S. Const. art. VI, cl. 2). As the state agency charged with enforcing the statute and Executive Order, CHRO has a strong interest in obtaining a judicial determination that neither measure is preempted by Title IX, and it is also uniquely situated to assist the Court in resolving the issue. During the recent telephone conference, CHRO's counsel explained that the agency seeks intervenor status rather than amicus status because of its experience in other cases when its participation was limited to that of an amicus. I credit the statements of CHRO's counsel that as an intervenor−defendant, CHRO will be better able to contribute to development of the issues. There is no basis for a finding that intervention by CHRO will unduly delay or prejudice adjudication of the plaintiffs' rights. Permissive intervention by CHRO is therefore appropriate in this instance. Whether the agency is entitled to intervene as of right need not be decided and I express no opinion on that matter. Accordingly, the motion to intervene is hereby granted with regard to the alternative request for permissive intervention. So ordered. Signed by Judge Robert N. Chatigny on 4/22/20. (Chatigny, Robert) (Entered: 04/22/2020)
96 NOTICE by Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, Selina Soule (Preliminary Statement of Relief Sought) (Brooks, Roger) (Entered: 04/24/2020)
97 Joint NOTICE by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Commission on Human Rights and Opportunities, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Thania Edwards, Glastonbury Public Schools Board of Education, Andraya Yearwood Request for Pre−Filing Conference (Zelman, Johanna) (Entered: 04/24/2020)
98 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Pre−Filing Conference set for 5/4/2020 at 2:00 PM before Judge Robert N. Chatigny. Please use the following call in information. Call in−866−434−5269, Access Code− 8189198#. (Rickevicius, L.) (Entered: 04/27/2020)
99 Second MOTION for Extension of Time until June 4, 2020 to File Rule 12 Motions by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Commission on Human Rights and Opportunities, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Thania Edwards, Glastonbury Public Schools Board of Education, Andraya Yearwood. (Zelman, Johanna) (Entered: 05/01/2020)
100 NOTICE of Appearance by Joshua E Gardner on behalf of U.S. Department of Education, Betsy DeVos, U.S. Department of Education Office for Civil Rights (Gardner, Joshua) (Entered: 05/04/2020)
101 Minute Entry for proceedings held before Judge Robert N. Chatigny: Telephonic Pre−Filing Conference held on 5/4/2020. 11 minutes(Court Reporter Darlene Warner.) (Bozek, M.) (Entered: 05/05/2020)

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06/03/2020

102 CERTIFICATE OF GOOD STANDING re 35 MOTION for Attorney(s) Chase Strangio, Joshua Block, James Esseks, Lindsey Kaley, and Galen Sherwin to be Admitted Pro Hac Vice (paid $375 PHV fee; receipt number ACTDC−5707968) by Thania Edwards, Andraya Yearwood. (Strangio, Chase) (Entered: 05/08/2020)
103 MOTION to Transfer/Disqualify/Recuse Judge by Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, Selina Soule. (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion to Disqualify, # 2 Exhibit A)(Brooks, Roger) (Entered: 05/08/2020)
104 Joint STATUS REPORT by Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, Selina Soule. (Brooks, Roger) (Entered: 05/08/2020)
105 CANCELLATION NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status Conference set for 5/14/2020 at 10:00 AM before Judge Robert N. Chatigny is cancelled. (Rickevicius, L.) (Entered: 05/11/2020)
106 Memorandum in Opposition re 91 Joint MOTION for Joinder of U.S. Department of Education filed by Betsy DeVos, U.S. Department of Education, U.S. Department of Education Office for Civil Rights. (Attachments: # 1 Affidavit of Randolph Wills)(Gardner, Joshua) (Entered: 05/11/2020)
107 Consent MOTION for Extension of Time until June 8, 2020 to Respond to U.S. Department of Education's Opposition to Defendants' Motion to Join the Department of Education As A Party To This Action 106 Memorandum in Opposition to Motion, by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education. (Murphy, Peter) (Entered: 05/19/2020)
108 ORDER granting 107 Consent Motion for Extension of Time to 6/8/2020 to Respond to U.S. Department of Education's Opposition to Defendants' Motion to Join the Department of Education As A Party To This Action 106 Memorandum in Opposition to Motion. Signed by Judge Robert N. Chatigny on 5/20/2020. (Rickevicius, L.) (Entered: 05/20/2020)
109 Consent MOTION for Extension of Time until June 5, 2020 to Respond to Plaintiffs' First Requests for Production of Documents by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education. (Murphy, Peter) (Entered: 05/20/2020)
110 ORDER granting 109 Consent Motion for Extension of Time to 6/5/2020 to Respond to Plaintiffs' First Requests for Production of Documents. Signed by Judge Robert N. Chatigny on 5/21/2020. (Rickevicius, L.) (Entered: 05/21/2020)
111 MOTION for Attorney(s) Mohammad B. Shihabi to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5880231) by Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education. (Zelman, Johanna) (Entered: 05/27/2020)
112 CERTIFICATE OF GOOD STANDING re 35 MOTION for Attorney(s) Chase Strangio, Joshua Block, James Esseks, Lindsey Kaley, and Galen Sherwin to be Admitted Pro Hac Vice (paid $375 PHV fee; receipt number ACTDC−5707968) by Thania Edwards, Andraya Yearwood. (Block, Joshua) (Entered: 05/29/2020)
113 Memorandum in Opposition re 103 MOTION to Transfer/Disqualify/Recuse Judge filed by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Commission on Human Rights and Opportunities, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Thania Edwards, Glastonbury Public Schools Board of Education, Andraya Yearwood. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Strangio, Chase) (Entered: 05/29/2020)
114 MOTION for Attorney(s) Mohammad B. Shihabi to be Admitted Pro Hac Vice by Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education. (Zelman, Johanna) (Entered: 06/03/2020)

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115 ORDER granting 114 Motion to Appear for Attorney Mohammad B. Shihabi to be Admitted Pro Hac Vice. Certificate of Good Standing due by 8/3/2020. Signed by Clerk on 6/4/2020. (Agati, Kathryn) (Entered: 06/04/2020)
116 ORDER finding as moot 111 Motion to Appear for Attorney Mohammad B. Shihabi to be Admitted Pro Hac Vice. Signed by Clerk on 6/4/2020. (Agati, Kathryn) (Entered: 06/04/2020)
117 REPLY to Response to 91 Joint MOTION for Joinder of U.S. Department of Education filed by Bloomfield Public Schools Board of Education, Canton Public Schools Board of Education, Connecticut Association of Schools, Inc., Cromwell Public Schools Board of Education, Danbury Public Schools Board of Education, Glastonbury Public Schools Board of Education. (Attachments: # 1 Exhibit A)(Murphy, Peter) (Entered: 06/08/2020)
118 NOTICE of Appearance by Mohammad Shihabi on behalf of Bloomfield Public Schools Board of Education, Cromwell Public Schools Board of Education (Shihabi, Mohammad) (Entered: 06/12/2020)
119 REPLY to Response to 103 MOTION to Transfer/Disqualify/Recuse Judge filed by Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, Selina Soule. (Attachments: # 1 Exhibit A)(Brooks, Roger) (Entered: 06/12/2020)
120 NOTICE of Appearance by Tyler Bischoff on behalf of Connecticut Association of Schools, Inc., Danbury Public Schools Board of Education (Bischoff, Tyler) (Entered: 06/15/2020)
121 ORDER denying 103 Motion to Transfer/Disqualify/Recuse Judge. Plaintiffs have moved for my recusal pursuant to 28 U.S.C. s 455(a) because during a telephone conference I informed plaintiffs' counsel that I wanted them to refrain from continuing to refer to the transgender females involved in this case as "males." In calling on plaintiffs' counsel to accept that limitation going forward, I explained that for plaintiffs' counsel to continue to call these transgender youth "males" would be needlessly provocative, and inconsistent with norms of civility in judicial proceedings, which I want to be careful to maintain. As I further explained, for plaintiffs' counsel to refer to these young people as "transgender females" in accordance with their gender identity would entail no concession whatsoever relating to the merits of the case; plaintiffs' counsel would still be able to refer to them as "biologically male" with "male bodies." They just couldn't refer to them as "males, period." Plaintiffs assert that as a result of my statement the public might reasonably believe that I am partial or biased. Plaintiffs have clarified that what troubles them in particular is my statement that for plaintiffs' counsel to refer to the transgender students involved in this case as "transgender females" rather than "males" would be consistent with "science." Plaintiffs argue that "the public might reasonably conclude that the Court has bias in [this] case where [plaintiffs'] arguments, claims, and expert testimony are based on the assertion that athletes born male remain male as a matter of scientific fact no matter their gender identity, and that as a result those athletes have 'an unfair competitive advantage to competition' in women's and girls' sports." ECF No. 199, at 3−4. I do not agree that the public might reasonably construe my reference to "science" as a comment on the merits of the issue whether transgender athletes have an unfair competitive advantage in girls' sports. In the telephone conference, I stated that referring to the transgender youth involved in this case as "transgender females" would be consistent with "science, common practice, and perhaps human decency." That statement does not reflect a preconceived conclusion on the issue of unfair competitive advantage presented by this case. In fact, and as I think objective members of the public would readily understand, the "science" I referred to is not the science relating to the issue of unfair competitive advantage but the science that tells us calling transgender girls "males" can cause significant mental and emotional distress. The insight provided by this science has led to a "common practice" of referring to transgender persons by their gender identity, which is viewed by many as a matter of "human decency." Thus, as I said, referring to these transgender youth as "transgender females" would be consistent with "science, common practice, and perhaps human decency." By referring to science in this way, in this context, and for this purpose, I did not state or imply anything about whether the transgender youth in this case do or do not enjoy an unfair competitive advantage when they compete in girls' track. To the extent plaintiffs' counsel argue that they must be able to refer to the transgender girls

in this case as "males, period" in order to fulfill their responsibilities as zealous advocates, and that they have an absolute Constitutional right to do so, the argument is unpersuasive. The issue of unfair competitive advantage can be fully and fairly litigated consistent with professional ethics and constitutional protections without referring to the transgender females involved in this case as "males, period." I think objective members of the public would agree. I also think objective members of the public would understand that just because I want plaintiffs' counsel to avoid needlessly calling the transgender females in this case "males, period" does not mean I am partial or biased with regard to any issue in the case. Accordingly, the motion is hereby denied. Signed by Judge Robert N. Chatigny on 6/16/20. (Chatigny, Robert) (Entered: 06/16/2020)

 
 Case 3:20-cv-00201-RNC Document 1 Filed 02/12/20 Page 1 of 52

Howard M. Wood III James H. Howard Fiorentino, Howard & Petrone, P.C. 773 Main Street Manchester, CT 06040 Telephone: (860) 643-1136

Kristen K. Waggoner Roger G. Brooks Jeffery A. Shafer Christiana M. Holcomb Alliance Defending Freedom 15100 N. 90th Street Scottsdale, Arizona 85260 Telephone: (480) 444-0020

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a minor, by Christina Mitchell, her mother; ALANNA SMITH, a minor, by Cheryl Radachowsky, her mother,
Plaintiffs,
v.
CONNECTICUT ASSOCIATION OF SCHOOLS, INC. d/b/a CONNECTICUT INTERSCHOLASTIC ATHLETIC CONFERENCE; BLOOMFIELD PUBLIC SCHOOLS BOARD OF EDUCATION; CROMWELL PUBLIC SCHOOLS BOARD OF EDUCATION; GLASTONBURY PUBLIC SCHOOLS BOARD OF EDUCATION; CANTON PUBLIC SCHOOLS BOARD OF EDUCATION; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION,

Case No.: ________________________
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
JURY TRIAL REQUESTED
Dated: February 12, 2020

Defendants.

Case 3:20-cv-00201-RNC Document 1 Filed 02/12/20 Page 2 of 52
INTRODUCTION
1. The Plaintiffs are three high school girls who compete in interscholastic girls’ track and field in Connecticut. Like large numbers of female athletes around the nation, each Plaintiff has trained much of her life—striving to shave mere fractions of seconds off her race times—in order to experience the personal satisfaction of victory, gain opportunities to participate in state and regional meets, gain access to opportunities to be recruited and offered athletic scholarships by colleges, and more.
2. Unfortunately for Plaintiffs and other girls in Connecticut, those dreams and goals—those opportunities for participation, recruitment, and scholarships—are now being directly and negatively impacted by a new policy that is permitting boys1 who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identity.
3. This discriminatory policy is now regularly resulting in boys displacing girls in competitive track events in Connecticut—excluding specific and identifiable girls including Plaintiffs from honors, opportunities to compete at higher levels, and public recognition critical to college recruiting and scholarship opportunities that should go to those outstanding female athletes.
1 Because Title IX focuses on equal opportunities between the sexes, because this Complaint is precisely concerned with effects of biological differences between males and females, because the terms “boys” and “men” are commonly understood to refer to males, and to avoid otherwise inevitable confusion, we refer in this complaint to athletes who are biologically male as “boys” or “men,” and to athletes who are biologically female as “girls” or “women.” This Complaint uses the names preferred by each student rather than legal names.
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4. As a result, in scholastic track competition in Connecticut, more boys than girls are experiencing victory and gaining the advantages that follow even though postseason competition is nominally designed to ensure that equal numbers of boys and girls advance to higher levels of competition. Compared to boys—those born with XY chromosomes—in the state of Connecticut those who are born female—with XX chromosomes—now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records.
5. This reality is discrimination against girls that directly violates the requirements of Title IX: “Treating girls differently regarding a matter so fundamental to the experience of sports—the chance to be champions—is inconsistent with Title IX’s mandate of equal opportunity for both sexes.” McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 295 (2d Cir. 2004).
I. JURISDICTION AND VENUE 6. This action pursuant to Title IX, 20 U.S.C. § 1681, et seq. and its interpreting regulations, raises federal questions and seeks redress for deprivation of rights protected by federal law. 7. This Court has original jurisdiction over the claims asserted in this Complaint under 28 U.S.C. § 1331, which provides jurisdiction for claims raising
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questions of federal law, and 28 U.S.C. § 1343(a), which provides jurisdiction for claims seeking vindication of civil rights protected by federal law.
8. This Court has authority to award the requested declaratory relief under 28 U.S.C. § 2201. This Court has authority to award the other relief requested under 28 U.S.C. § 2202.
9. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in this District and all Plaintiffs and Defendants reside or have their principal place of business in Connecticut.
II. PARTIES A. Plaintiffs
10. Plaintiff Selina Soule is a twelfth-grade female student and varsity track and field athlete at Glastonbury High School. Because Selina Soule is a minor, she brings this action by her mother, Bianca Stanescu.
11. Plaintiff Chelsea Mitchell is a twelfth-grade female student and varsity track and field athlete at Canton High School. Because Chelsea Mitchell is a minor, she brings this action by her mother, Christina Mitchell.
12. Plaintiff Alanna Smith is a tenth-grade female student and varsity track and field athlete at Danbury High School. Because Alanna Smith is a minor, she brings this action by her mother, Cheryl Radachowsky.
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13. Selina Soule, Bianca Stanescu, Chelsea Mitchell, Christina Mitchell, Alanna Smith, and Cheryl Radachowsky all reside within the District of Connecticut.
B. Defendants 14. Defendant Bloomfield Public Schools Board of Education is located in
Bloomfield, Connecticut, and has entered and continues to enter male athlete Terry Miller in Connecticut Interscholastic Athletic Conference (CIAC) girls’ athletic competitions.
15. Defendant Cromwell Public Schools Board of Education is located in Cromwell, Connecticut, and has entered and continues to enter male athlete Andraya Yearwood in CIAC girls’ athletic competitions.
16. Defendant Glastonbury Public Schools Board of Education is located in Glastonbury, Connecticut, and provides opportunities for interscholastic competition for its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
17. Defendant Canton Public Schools Board of Education is located in Canton, Connecticut, and provides opportunities for interscholastic competition for its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
18. Defendant Danbury Public Schools Board of Education is located in Danbury, Connecticut, and provides opportunities for interscholastic competition for
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its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
19. On information and belief, each of Bloomfield Public Schools, Cromwell Public Schools, Glastonbury Public Schools, Canton Public Schools, and Danbury Public Schools (collectively, “the Defendant Schools”), receives federal financial assistance.
20. All programs at the Defendant Schools are therefore subject to the requirements of Title IX.
21. Defendant Connecticut Association of Schools, Inc., which operates and is referred to herein under the name of the Connecticut Interscholastic Athletic Conference (CIAC) is a Connecticut not-for-profit corporation with its headquarters in Cheshire, Connecticut. CIAC is the “sole governing body for inter-scholastic athletic activities in Connecticut,” and “directs and controls” all high school athletics for boys and girls in Connecticut.
22. CIAC is funded by dues from member schools that are subject to the obligations of Title IX. According to CIAC, “[v]irtually all public and parochial high schools in Connecticut are dues-paying members.”
23. All Defendant Schools are dues-paying members of the CIAC. 24. On information and belief, all public schools in Connecticut receive federal funds covered by Title IX, and thus are subject to the requirements of Title IX.
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25. CIAC is subject to the obligations of Title IX because it indirectly receives federal funding from its public member-schools, see 34 C.F.R. § 106.2(i), and is considered a state actor, see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 303-305 (2001).
26. CIAC is also controlled by member schools that are subject to the obligations of Title IX. The CIAC Board of Control is elected by the member schools, and a majority of the CIAC Board of Control are principals or other senior administrators of member schools. CIAC policies are established by the principals of the member schools, through the CIAC Legislative Body which is made up of the principals of all member schools.
27. On information and belief, the majority of CIAC member schools receive federal funds and are subject to the obligations of Title IX.
28. CIAC controls and governs competition in 27 sports across three seasons each year, including Winter Indoor Track and Spring Outdoor Track. CIAC designates some sports only for boys (e.g. football and baseball), different sports only for girls (e.g. softball), and other sports for both boys and girls (e.g. swimming and track).
29. For the latter sports, though, CIAC and its member schools have historically separated teams and competitions at the high school level by sex, or at least prohibited boys from competing in the girls’ events.
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III. FACTUAL BACKGROUND A. The Goals and Requirements of Title IX, and Its Impact on
Women’s Athletics. 30. In 1972, Congress enacted Title IX, 20 U.S.C. § 1681, which forbids education programs or activities receiving federal financial assistance from discriminating against persons based on their sex. It provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a). 31. Title IX was designed to eliminate significant “discrimination against women in education.” Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763, 766 (9th Cir. 1999). 32. According to one of its primary sponsors, Senator Birch Bayh, Title IX promised women “an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for work.” 118 Cong. Rec. 5808 (1972). 33. Before the enactment of Title IX in 1972, schools often emphasized boys’ athletic programs “to the exclusion of girls’ athletic programs,” Williams v. School District of Bethlehem, 998 F.2d 168, 175 (3rd Cir. 1993), and vastly fewer girls participated in competitive interscholastic athletics than did boys. 34. Many have argued that the competitive drive and spirit taught by athletics is one important educational lesson that carries over and contributes to lifetime success in the workplace. Certainly, implementing regulations make clear
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that Title IX applies in full force to athletic programs sponsored by recipients of federal financial assistance:
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a). 35. In the statute, Congress expressly delegated authority to the United States Department of Health, Education and Welfare (HEW) to promulgate regulations interpreting Title IX. 20 U.S.C. §1682. In 1975, HEW promulgated regulations that are codified at 34 C.F.R. Part 106 (collectively, the “Regulations”). Further, in 1979, the Department of Education Office for Civil Rights (OCR) issued a policy interpretation of Title IX and the Regulations to provide recipients with more specific guidance about the statute’s application to intercollegiate athletics. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the “Policy Interpretation”). Courts have recognized that the Policy Interpretation is also applicable to high school athletic programs. The Policy Interpretation was further clarified by OCR through issuance of OCR’s 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (the “OCR Clarification”). 36. Title IX and its implementing regulations and guidance require that, if an entity subject to Title IX provides athletic programs or opportunities separated by sex, then it must do so in a manner that “provide[s] equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).
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37. As one aspect of equal athletic opportunity, implementing regulations and guidance state that provided athletic opportunities must “effectively accommodate the interests and abilities” of girls, as well as of boys. 34 C.F.R. § 106.41(c). Here, the “governing principle” is that “the athletic interests and abilities of male and female students must be equally effectively accommodated.” Policy Interpretation, 44 Fed. Reg. at 71,414. More specifically, the institution must accommodate the physical abilities of girls and women “to the extent necessary to provide equal opportunity in . . . levels of competition,” and competitive opportunities “which equally reflect their abilities.” Policy Interpretation, 44 Fed. Reg. at 71,417-418.
38. As another aspect of equal athletic opportunity, implementing regulations and guidance state that male and female athletes “should receive equivalent treatment, benefits and opportunities.” Policy Interpretation, 44 Fed. Reg. at 71,415. The “equal treatment” to which girls and women are entitled includes equal “opportunities to engage in . . . post-season competition,” id. at 71,416, equal opportunities for public recognition, 34 C.F.R. § 106.41(c), and the right to be free of any policies which are “discriminatory in . . . effect” or that have the effect of denying “equality of athletic opportunity.” 44 Fed. Reg. at 71,417.
39. Title IX has been strikingly successful towards its intended goals. “For example, between 1972 and 2011, girls’ participation in high school athletics increased from approximately 250,000 to 3.25 million students.” U.S. Dept. of Educ., OCR, Protecting Civil Rights, Advancing Equity 33 (2015), https://bit.ly/2VF516Q.
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In college, women’s numbers have grown almost as steeply, from 30,000 to more than 288,000 in 2017-18.2 Following the United States’ famed 1999 Women’s World Cup win, the Ninth Circuit wrote that:
“The victory sparked a national celebration and a realization by many that women’s sports could be just as exciting, competitive, and lucrative as men’s sports. And the victorious athletes understood as well as anyone the connection between a 27–year–old statute [Title IX] and tangible progress in women’s athletics.” Neal, 198 F.3d at 773. B. Equal Opportunities in Athletics and the Physiological
Differences Between the Sexes. 40. What Title IX does not require—or even permit—is that recipients blind themselves to students’ sex when developing their athletic programs. Sponsors of the statute made that much clear during the debates in Congress,3 and implementing regulations expressly permit schools to sponsor sex-specific teams “where selection for such teams is based on competitive skill or the activity involved is a contact sport.” 34 C.F.R. 106.41(b). 41. In fact, ignoring the physical differences between the sexes would in many sports make it impossible to “accommodate the . . . abilities” of girls and women, and to provide athletic opportunities of equal quality to girls and women. In fact, in 1975 Dr. Bernice Sandler—who is frequently recognized as “the Godmother or Title IX”— told the House Subcommittee on Postsecondary Education, while testifying in support of regulations implementing Title IX, that to operate an
2 Doriane Lambelet Coleman et al., Re-Affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, Duke Journal of Gender Law Policy (forthcoming February 2020), available at SSRN: https://ssrn.com/abstract=3523305, citing https://ope.ed.gov/athletics/#/. 3 S. Ware, Title IX: A Brief History with Documents, at 13 (2007).
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entirely coed athletic program, ignoring differences in male and female physiology, would for many sports “effectively eliminate opportunities for women to participate in organized competitive athletics. For these reasons, such an arrangement would not appear to be in line with the principle of equal opportunity.” Statement of Dr. Bernice Sandler, Director, Project on the Status & Education of Women, Ass’n of American Colleges, June 25, 1975, Hearings on Sex Discrimination Regulations at 343.
42. Dr. Sandler was correct. Permitting males to compete in girls’ or women’s athletic events doesn’t merely add a new level of challenge for determined girls and women. Victory over comparably talented and trained male athletes is impossible for girls and women in the vast majority of athletic competitions, because of inherent and biologically dictated differences between the sexes.
43. While boys and girls have comparable athletic capabilities before boys hit puberty, male puberty quickly increases the levels of circulating testosterone in healthy teen and adult males to levels ten to twenty times higher than the levels that occur in healthy adult females, and this natural flood of testosterone drives a wide range of physiological changes that give males a powerful physiological athletic advantage over females.
44. The athletic performance-enhancing effects of testosterone are well known, and the anabolic steroids too often used by athletes to gain an unfair and prohibited advantage are often synthetic modifications of testosterone. Basically,
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from puberty on, boys and men have a large, natural, and equally unfair “doping”
advantage over girls and women.
45. Physiological athletic advantages enjoyed over girls and women by
similarly fit males after puberty include:
a. Larger lungs and denser alveoli in the lungs, enabling faster oxygen uptake;
b. Larger hearts and per-stroke pumping volume, and more hemoglobin per unit of blood, all enabling higher short-term and sustained levels of oxygen transport to the muscles;
c. An increased number of muscle fibers and increased muscle mass (for example, men have 75%-100% greater cross-sectional area of upper arm muscle than do comparably fit women, while women have 60-70% less trunk and lower body strength than comparably fit men);
d. Higher myoglobin concentration within muscle fibers, enabling faster transfer and “cellular respiration” of oxygen within the muscle to unleash power;
e. Larger bones, enabling the attachment of greater volumes of muscle fiber;
f. Longer bones, enabling greater mechanical leverage thus enabling males to unleash more power, e.g., in vertical jumps;
g. Increased mineral density in bones resulting in stronger bones, providing superior protection against both stress fractures and fractures from collisions;
h. And, of course, U.S. adult males are on average 5 inches taller than U.S. adult women.
46. Meanwhile, female puberty brings distinctive changes to girls and
women that identifiably impede athletic performance, including increased body fat
levels which—while healthy and essential to female fertility—creates increased
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weight without providing strength, as well as wider hips and different hip joint orientation that result in decreased hip rotation and running efficiency.
47. These are inescapable biological facts of the human species, not stereotypes, “social constructs,” or relics of past discrimination.
48. As a result of these many inherent physiological differences between men and women after puberty, male athletes consistently achieve records 10-20% higher than comparably fit and trained women across almost all athletic events, with even wider consistent disparities in long-term endurance events and contests of sheer strength such as weight-lifting.
49. The basic physiological differences between males and females after puberty have long been recognized and respected by the different standards set for boys and girls in a number of athletic events. For example:
a. The net height used for women’s volleyball is more than 7 inches lower than that used for men’s volleyball.
b. The standard weight used in high school shot put is 4 kilograms for girls, and 5.44 kilograms (36% heavier) for boys.
c. The hurdle height used for the high school girls’ 100 meter hurdle event is 33 inches, whereas the standard height used for boys’ high school 110 meter hurdle is 39 inches.
d. The standard women’s basketball has a circumference of 28 1/2 to 29 inches and a weight of 20 oz, while a standard basketball used in a men’s game has a circumference between 29 1/2 to 30 inches and a weight of 22 oz.
50. In track and field events that do not use equipment, the physiological differences between males and females after puberty are stark in the record books. No one doubts that top male and female high school athletes are equally committed
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to excelling in their sport, and train equally hard. Yet boys and men consistently
run faster and jump higher and farther than girls and women.
51. For example, in 2017, thousands of men and boys achieved times in the
400m faster than the best lifetime performances of three women Olympic
champions in that event. Each year, thousands of men—and dozens or hundreds of
high school boys under the age of 18—achieve times (or heights or distances) in
track events better than the world’s single best elite woman competitor that year.
52. As Duke Law professor and All-American track athlete Doriane
Lambelet Coleman, tennis champion Martina Navratilova, and Olympic track gold
medalist Sanya Richards-Ross recently wrote:
The evidence is unequivocal that starting in puberty, in every sport except sailing, shooting and riding, there will always be significant numbers of boys and men who would beat the best girls and women in head-to-head competition. Claims to the contrary are simply a denial of science. Team USA sprinter Allyson Felix has the most World Championship medals in history, male or female, and is tied with Usain Bolt for the most World Championship golds. Her lifetime best in the 400 meters is 49.26 seconds. In 2018 alone, 275 high school boys ran faster on 783 occasions. The sex differential is even more pronounced in sports and events involving jumping. Team USA’s Vashti Cunningham has the American record for high school girls in the high jump at 6 feet, 4½ inches. Last year just in California, 50 high school boys jumped higher. The sex differential isn’t the result of boys and men having a male gender identity, more resources, better training or superior discipline. It’s because they have androgenized bodies.4
4 Doriane Lambelet Coleman, Martina Navratilova, et al., Pass the Equality Act, But Don’t Abandon Title IX, Washington Post (Apr. 29, 2019), https://wapo.st/2VKlNN1.
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53. As Professor Lambelet Coleman further explained in testimony before the House Judiciary Committee on April 2, 2019, in track events even the world’s best women’s Olympic athletes “would lose to literally thousands of boys and men, including to thousands who would be considered second tier in the men’s category. And because it only takes three male-bodied athletes to preclude the best females from the medal stand, and eight to exclude them from the track, it doesn’t matter if only a handful turn out to be gender nonconforming.”5
54. This stark competitive advantage is equally clear at the high school level. To illustrate, the charts below show the best boys’ and girls’ times in the nation across five different high school track events during the 2019 indoor and outdoor season:

Table 1: Best High School Outdoor 100m Times in 20196

Boy

Time

Girl

Matthew Boling

9.98s

Briana Williams

Micah Williams

10.21s

Semira Killebrew

Langston Jackson 10.23s

Thelma Davies

Joseph Fahnbulleh 10.23s

Tamari Davis

Ryan Martin

10.26s

Arria Minor

Kenan Christon

10.26s

Tianna Randle

Time 10.94s 11.24s 11.25s 11.27s 11.31s 11.32s

5 Testimony and illustrating graphic at https://docs.house.gov/meetings/JU/JU00/20190402/109200/HHRG-116-JU00-WstateLambeletColemanP-20190402.pdf, last visited February 11, 2020. 6 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Top.aspx?DivID=97967 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Top.aspx?DivID=97967&amp;gender=f (girls). These results were last visited February 11, 2020.
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Lance Broome Tyler Owens Ryota Hayashi Marquez Beason

10.27s 10.29s 10.29s 10.30s

Taylor Gilling Kenondra Davis De’anna Nowling Jacious Sears

11.32s 11.36s 11.40s 11.41s

Table 2: Best High School Outdoor 200m Times in 20197

Boy

Time

Girl

Matthew Boling

20.30s

Briana Williams

Kenney Lightner

20.48s

Thelma Davies

Cameron Miller

20.52s

Tamari Davis

Kenan Christon

20.55s

Kayla Davis

Kennedy Harrison 20.60s

Taylor Gilling

Joseph Fahnbulleh 20.67s

Arria Minor

Lance Broome

20.69s

Aaliyah Pyatt

Devon Achane

20.69s

Rosaline Effiong

Daniel Garland

20.73s

Jayla Jamison

Langston Jackson 20.73s

Dynasty McClennon

Time 22.88s 22.95s 22.96s 23.08s 23.10s 23.10s 23.11s 23.16s 23.19s 23.28s

Table 3: Best High School Outdoor 400m Times in 20198

Boy

Time

Girl

Justin Robinson

44.84s

Kayla Davis

Myles Misener Daley 45.62s

Jan’Taijah Ford

Emmanuel Bynum 46.24s

Athing Mu

Jayon Woodard

46.26s

Britton Wilson

Alex Collier

46.33s

Ziyah Holman

Jonah Vigil

46.43s

Kimberly Harris

Time 51.17s 51.57s 51.98s 52.06s 52.12s 52.16s

7 Id. These results were last visited February 11, 2020. 8 Id. These results were last visited February 11, 2020.
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Zachary Larrier Omajuwa Etiwe Sean Burrell Edward Richardson

46.49s 46.51s 46.52s 46.55s

Aaliyah Butler Caitlyn Bobb Talitah Diggs Aaliyah Butler

52.25s 52.79s 52.82s 52.87s

Table 4: Best High School Indoor 60m Times in 20199

Boy

Time

Girl

Time

Micah Williams

6.60s

Tamari Davis

7.27s

Lance Lang

6.62s

Briana Williams

7.28s

Marcellus Moore

6.65s

Thelma Davies

7.30s

Mario Heslop

6.70s

Moforehan Abinusawa 7.32s

Langston Jackson 6.74s

Jacious Sears

7.33s

Javonte Harding

6.77s

Semira Killebrew

7.34s

LaCarr Trent

6.79s

Alexa Rossum

7.40s

Justin Robinson

6.79s

Aliya Wilson

7.42s

Bryan Santos

6.79s

Kaila Jackson

7.44s

Tre Tucker

6.80s

Aja Davis

7.44s

Table 5: Best High School Indoor 800m Times in 201910

Boy

Time

Girl

Alfred Chawonza

110.57s

Athing Mu

Time 123.98s

9 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=42 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=42 (girls), last visited February 11, 2020. 10 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=4 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=22 (girls), last visited February 11, 2020.
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Malcolm Going Miller Anderson Luis Peralta Jake Renfree Liam Rivard Conor Murphy Miguel Parrilla Darius Kipyego Theo Woods

110.85s 111.54s 112.21s 112.33s 112.42s 113.25s 113.41s 113.43s 113.53s

Roisin Willis Michaela Rose Victoria Vanriele Maggie Hock Lily Flynn Victoria Starcher Aleeya Hutchins Sarah Trainor Makayla Paige

125.70s 126.93s 127.24s 127.68s 128.15s 128.32s 128.52s 128.60s 128.97s

55. In 2016, Vashti Cunningham set the high school American record in the girls’ high jump at 6 feet, 4½ inches, and went on to represent the United States at the Olympics in that same year. Yet to quote Professor Lambelet Coleman again, if the 2016 girls’ high school track competition had been open to males, “Cunningham would not have made it to her state meet, she would not be on the national team, and we would not know her name other than as a footnote on her father’s Wikipedia page.” And for the vast number of girls who benefit from the experience of competitive athletics even if they are not future champions, “if sport were not sex segregated, most school-aged females would be eliminated from competition during the earliest rounds.” (Coleman 2020 at 20-21.)
56. Plaintiffs do not know whether or if so at what time the male students who are competing in CIAC track events began taking cross-sex hormones. Nor does this matter. Administering testosterone-suppressing drugs to males by no means eliminates their performance advantage. Some physiological advantages— such as bone size and hip configuration—cannot be reversed once they have
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occurred. And suppressing testosterone in men after puberty also does not

completely reverse their advantages in muscle mass and strength, bone mineral

density, lung size, or heart size.

57. This reality is evident in the performance of male athletes who have

competed as women after taking cross-sex hormones. For example, CeCe Telfer, a

male who ran as Craig Telfer throughout high school and the first two years of

college, certified compliance with the NCAA requirement of one year on

testosterone-suppressing drugs and began competing in female track events in

CeCe’s senior collegiate year, for the 2019 indoor and outdoor track and field

seasons. CeCe’s “personal best” did not go down substantially in any event following

at least a year on testosterone suppressing drugs, and in a number of events instead

improved:

Table 6: Comparison of “Craig” and “CeCe” Telfer Performance Times Before and After Hormone Suppression

Event Indoor 200 Meter Dash Indoor 60 Meter Hurdles Outdoor 100 Meter Dash Outdoor 400 Meter Hurdles

“Craig” Telfer 24.64s (2017) 8.91s (2018) 12.38s (2017) 1:02.00s (2017)

“Cece” Telfer 24.45s (2019) 8.33s (2019) 12.24s (2019) 57.53s (2019)

58. Not surprisingly, while Craig Telfer ranked 212th and 433rd in the 400 meter hurdles among men’s Division II athletes in 2016 and 2017 respectively, CeCe Telfer took the Division II national championship in women’s 400 meter hurdles in 2019.

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59. Minna Sveard, the fastest female runner, finished almost a full two seconds behind Telfer, and was recognized only as coming in second.
60. In short, if males compete in girls’ events after puberty, equally gifted and dedicated female athletes simply can’t win.
C. Increasing Numbers of Girls Are Losing Athletic Victories and Opportunities to Transgender Competitors Today.
61. In the past, it has been argued that the unfair impact of males competing in girls’ and women’s categories would be trivial, because few males will wish to do so. But over just the last few years, the problem of boys and men taking opportunities from girls and women has grown very rapidly.
62. As increasing numbers of males are in fact competing in girls' and women’s events each year, girls are in fact losing, and males are seizing one “girls’” or “women’s” championship and record after another.
63. Meanwhile, multiple sources report that the percentage of children identifying as transgender has multiplied rapidly within just the last few years.
64. As a larger wave of males claiming transgender identity as girls and women hits high school and college, the number of girls losing out on varsity spots, playing time, medals, advancement to regional meets, championship titles and records, and recognition on the victory podium, will also multiply. Indeed, given that it only takes three males to sweep the titles at local, regional, and national competitions entirely, and given the hard physiological facts reviewed above, if increasing number of males compete in girls’ and women’s athletics, those born female—girls—will simply vanish from the victory podium and national rankings.
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65. This wave of lost opportunities and lost equality for girls is all the more inevitable when males are not merely permitted to take girls’ slots and girls' titles, but are praised by schools and media as “courageous” and hailed as “female athlete of the year” when they do so.
66. Perhaps worse, if the law permits males to compete as girls in high school, then there is no principled basis on which colleges can refrain from recruiting these “top performing girls” (in reality males) for their “women’s teams” and offering them the “women’s” athletic scholarships.
67. In sum, because schools are permitting males to compete as girls and women, girls and women are losing competitive opportunities, the experience of fair competition, and the opportunities for victory and the satisfaction, public recognition, and scholarship opportunities that can come from victory. More, girls and young women are losing their dreams. To American girls—those born with XX chromosomes—the message is, “Give up. You can’t win.”
IV. THE DISCRIMINATORY CIAC POLICY AND ITS IMPACT ON GIRLS A. CIAC Adopts a New Policy Allowing Boys to Compete in Girls’
Events. 68. CIAC rightly deems athletics an “integral” part of the state’s “total educational program.” 69. CIAC declares that it seeks to offer athletic experiences that satisfy the highest “expectations for fairness, equity, and sportsmanship for all studentathletes and coaches” in order to maximize high school students’ “academic, social, emotional, and physical development.”
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70. However, at some time before 2017, CIAC adopted a policy (“the CIAC Policy” or “the Policy”) pursuant to which CIAC and member-schools began allowing boys who identify as girls to compete in girls’ athletic events.
71. The CIAC Policy determines—and requires member-schools to determine—eligibility to compete in sex-specific athletic competitions solely based on “the gender identification of that student in current school records and daily life activities in the school . . . .”
72. As detailed later in this Complaint, CIAC and its member-schools have permitted male students to switch, from one season to the next, from competing in boys’ events to competing (and winning) in girls’ events.
73. The CIAC Policy acknowledges that a male who competes in girls’ events gains an “unfair advantage in competitive athletics.” (CIAC By-Laws Article IX, Section B.)
74. On information and belief, at no point prior to adoption of the Policy did CIAC, the CIAC Board of Control, the CIAC Legislative Body, or any of the Defendant Schools undertake any analysis of the likely impact on girls of the Policy—including the likely impact on the quantity and quality of competitive opportunities and opportunities for victory and advancement for girls in track and field.
75. On information and belief, at no point since the adoption of the Policy did CIAC, the CIAC Board of Control, the CIAC Legislative Body, or any of the Defendant Schools undertake any analysis of the likely impact on girls of the
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Policy—including the likely impact on the quantity and quality of competitive opportunities and opportunities for victory and advancement for girls in track and field.
B. CIAC’s Policy Has Resulted in Unequal Opportunities for Girls in Track and Field Competitions in Connecticut.
76. As a result of CIAC’s policy, two biological males, Terry Miller and Andraya Yearwood, were permitted to compete in girls’ athletic competitions beginning in the 2017 track season.
77. Between them, Terry and Andraya have taken 15 women’s state championship titles (titles held in 2016 by nine different Connecticut female athletes) and have taken more than 85 opportunities to participate in higher level competitions from female track athletes in the 2017, 2018, and 2019 seasons alone. In this section, we detail this adverse impact on girls and young women.
78. To understand how opportunities to participate in higher levels of athletic competition are determined for student athletes, it is necessary to understand how CIAC has organized interscholastic track and field competition in Connecticut. First, based on performance throughout the season, students may qualify to participate in state “Class” championships, with schools grouped by size (S, M, L, and LL). Thus, for example, a student might win the “Class M Women’s Outdoor Track 100m” State championship. Next, the top-performing students within each State Class championship qualify to participate in the State Open championships, in which the top athletes in the state compete against each other regardless of the size of the school that they attend. And finally, the top performers
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5*

12

F Kiara Smith

6*

11

F Kate Hall

7

9

F Chelsea Mitchell

8

12

F Tiandra Robinson

12.59s Jonathan Law

12.62s Stonington

12.69s Canton

FS

Weaver

* Qualified for the New England Championship.

87. In the Winter 2017, Spring 2017, and Winter 2018 seasons, male

athlete Terry Miller competed in boys’ indoor or outdoor track events and did not

advance to any state class or open championships in individual events. Just weeks

after the conclusion of the Winter 2018 indoor season, Terry abruptly appeared

competing in the girls’ events in the Spring 2018 outdoor track season.

88. Terry’s switch to competing in the girls’ events immediately and

systematically deprived female athletes of opportunities to advance and participate

in state-level competition. According to AthleticNET records, Terry never lost a

women’s indoor 55m or 300m final in the 2018 or 2019 track seasons. Nor has Terry

lost a women’s outdoor 100m final in which Terry competed.

89. Terry has also displaced a girl in numerous elimination track events in

which Terry competed. At the 2018 outdoor State Open, for example, Terry won the

women’s 100m event by a wide margin, while Andraya finished second. But for

CIAC’s policy, Bridget Lalonde would have won first place statewide in that event,

Chelsea Mitchell would have won second place statewide, and Tia Marie Brown and

Ayesha Nelson would have qualified to compete in the New England Championship:

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93. But for CIAC’s policy, Kate Shaffer would have won second place in the 55m at the indoor state championship; and seventh-place senior Cori Richardson would have qualified for the New England Championship. (Table 12)
94. But for CIAC’s policy, Chelsea Mitchell would have made her school’s history as the first female athlete from Canton High School indoor ever to be named State Open Champion, and the first ever Canton High School track athlete to be named a State Open Champion.
95. State Open Champions are recognized as All State Athletes, an award listed on college applications, scholarship applications, and college recruiting profiles. State Open Champions are also invited to the All-State Banquet and have their achievements celebrated with a banner in their high school gym.
96. But instead of receiving the accolades and publicity she earned, Chelsea Mitchell was repeatedly referred to in the press as the “third-place competitor.”17
97. Following Terry Miller’s sweep of the CIAC’s Indoor Class S, State Open, and New England titles in the 55m dash and 300m, this male athlete was named “All-Courant girls indoor track and field athlete of the year” by the Hartford Courant newspaper.18
17 See, e.g., https://www.washingtontimes.com/news/2019/feb/24/terry-miller-andraya-yearwoodtransgender-sprinter/, last visited February 11, 2020. 18 https://www.courant.com/sports/high-schools/hc-sp-terry-miller-all-courant-20190410-36bj/, last visited February 11, 2020.
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100. Males took 23 out of 28 first and second place awards in those seven state-level competitive events.
101. And from these competitions, boys were awarded 51 opportunities to participate in a higher-level state competition, while girls were awarded only 31 such opportunities—little more than half as many as went to boys.
102. In short, in these events girls—those born with XX chromosomes— received radically fewer opportunities to participate in elite post-season competition than did boys—those born with XY chromosomes.
103. Nor are these isolated examples. The presence of boys competing in CIAC girls’ track and field events in Connecticut has now deprived many female athletes of opportunities to achieve public recognition, a sense of reward for hard work, opportunities to participate in higher level competition, and the visibility necessary to attract the attention of college recruiters and resulting scholarships. The impact summary below identifies over 50 separate times in competitions since 2017 that specific, identifiable girls have been denied the recognition of being named state-level first-place champions, and/or have been denied the opportunity to advance to and participate in higher-level competition, in CIAC-sponsored events as a result of the unfair participation of Terry Miller and Andraya Yearwood in girls’ track competitions pursuant to the CIAC Policy.
104. In sum, the real-world result of the CIAC Policy is that in Connecticut interscholastic track competitions, while highly competitive girls are experiencing the no doubt character-building “agony of defeat,” they are systematically being
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106. The harm inflicted on girls by the CIAC policy, however, goes far beyond specific lost victories and lost opportunities to participate in elite meets, and far beyond the specific girls who have been deprived of that recognition and those opportunities. Instead, the harm extends at least to all girls who participate in track and field events under the CIAC Policy, and indeed to girls—including young girls—who may now or someday aspire to become track and field athletes.
107. The cumulative effect of the CIAC Policy is that all girls in Connecticut do not receive equal athletic opportunities. Whether or not a girl is the one who loses out to a male in a particular race, the quality of competitive opportunities provided to all girls does not equally reflect the quality of competitive opportunities provided to boys, because—in contrast to boys—girls are forced to face a level of competition that does not equally reflect and accommodate girls’ different physiological characteristics and abilities.
108. Compared to boys, girls competing subject to the CIAC policy lose not only victories and post-season slots, they lose even an equal hope of victory, success and recognition. They do not have an equal chance to be champions; they cannot equally dream that if they train hard, they have at least the potential to stand on the victory podium.
109. Instead, when a male is competing in the girls’ division, Plaintiffs and other girls are forced to step to the starting line thinking, “I can’t win.” “I’m just a girl.”
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110. The Plaintiffs’ personal and attainable goals of victory are being taken from them season after season, and meet after meet.
111. Plaintiff Alanna Smith knows before she gets to the track that she will not win the top spot against a male—she and her fellow female competitors are simply competing for second or third place.
112. The Plaintiffs are demoralized, knowing that their efforts to shave mere fractions of a second off of their race times in the hopes of experiencing the thrill of victory could all be for naught, and lost to mid-level male athletes.
113. For Plaintiff Chelsea Mitchell and many other female athletes, they also feel stress, anxiety, intimidation, and emotional and psychological distress from being forced to compete against males with inherent physiological advantages in the girls’ category. While important races always involve some element of stress, Chelsea has felt physically sick before races in which she knew she would have to race against a male, while Plaintiff Selina Soule suffered depression after being excluded from participation in State finals because top places in the girls’ rankings were occupied by males.
114. And they are told to shut up about it. As another female Connecticut track athlete who was too afraid to let her name be used told a reporter:
“There’s really nothing else you can do except get super frustrated and roll your eyes, because it’s really hard to
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even come out and talk in public, just because . . just immediately you’ll be shut down.”20 115. Chelsea Mitchell was instructed by officials of Canton High School to respond “no comment” if asked about running against male athletes.
C. Defendants Are on Notice of Their Violations of Title IX and Have Refused to Take Corrective Action.
116. The CIAC and its member schools, including Defendant Schools, have been informed of the ways in which the Policy violates Title IX, and have been informed in detail about the actual impact that the Policy has had and is having on the quantity and quality of competitive opportunities for girls since well before June 18, 2019, on which date Plaintiffs filed a complaint concerning the Policy with the U.S. Department of Education Office for Civil Rights (OCR), and publicly posted that complaint online (the OCR Complaint”).
117. The OCR Complaint disclosed all facts concerning the impact of the Policy on female athletes in Connecticut that are gathered in this Complaint through the conclusion of the Spring 2019 Outdoor Season.
118. Since receiving the OCR Complaint, Defendants have taken no steps to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
20 Quoted in Kelsey Bolar, 8th Place: A High School Girl’s Life After Transgender Students Join Her Sport, The Daily Signal (May 6, 2019), https://www.dailysignal.com/2019/05/06/8th-place-highschool-girls-speak-out-on-getting-beat-by-biological-boys/, last visited February 11, 2020.
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119. In fact, long before filing the OCR Complaint, parents of Plaintiffs had repeatedly warned senior officials of CIAC and of Defendant Schools that the Policy was denying girls equal competitive opportunities and public recognition in track and field. For example, on February 21, 2018, Christina Mitchell, mother of Plaintiff Chelsea Mitchell, sent a letter to the Executive Director of CIAC explaining in detail how the Policy deprives girls of fair and equal opportunities for competition.
120. After that time, Mrs. Mitchell and Bianca Stanescu, mother of Plaintiff Selina Soule, met—or requested to meet—repeatedly with responsible officials of CIAC and Defendant Schools to discuss their concerns about unfairness to girls, and to request that the Policy be changed.
121. In response to these warnings and complaints from parents concerning the effect of the Policy on girls, Defendants took no steps whatsoever to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
122. Instead, when in March 2019—a year after her first letter—Mrs. Mitchell sent a third detailed letter on the same topic to the Mr. Glenn Lungarini, then Executive Director of CIAC, Mr. Lungarini informed her that CIAC would no longer accept any communications from her, effectively retaliating against her for her prior complaints of discrimination against girls by imposing a gag order and
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denying her right to complain of sex-based discrimination against her daughter and other girls in Connecticut schools.
123. On information and belief, by no later than on or about October 4, 2019, the OCR informed all Defendants that OCR found the allegations of the OCR Complaint sufficiently serious that OCR had initiated a formal investigation of those allegations against all Defendants.
124. Since receiving notice that the OCR had initiated a formal investigation of Defendants’ alleged violations of Title IX, Defendants have taken no steps whatsoever to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
V. PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF 125. Plaintiff Chelsea Mitchell has qualified to compete in the CIAC Class S Indoor Track Championships to be held on February 14, 2020, in the 55m dash and the 300m events. 126. The qualifying times of all student athletes competing in the Class S Championships are publicly available online at CIACsports.com and AthleticNet. 127. Based on her qualifying times, Chelsea is currently the fastest girl in the 55m both in the Class S and across all class divisions in Connecticut.
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128. Based on her qualifying time, Chelsea is also the fastest girl in the 300m in the Class S division and ranked sixth across all class divisions in Connecticut.
129. Chelsea has a chance of being the fastest girl in the Class S Championships in the 55m dash and 300m for the 2020 Winter season.
130. But male athlete Terry Miller has also qualified to compete in the girls’ 55m and 300m at the Class S Championships.
131. Male athlete Andraya Yearwood has also qualified to compete in the girls’ 55m dash at the Class S Championships.
132. Terry Miller has repeatedly achieved times faster than the elite girls’ times in Connecticut in the 55m and 300m events.
133. If Terry is permitted to compete in the girls’ 55m and 300m events, it is likely that Terry will deprive Chelsea of a victory position that she has earned in the Class S Championship.
134. Moreover, Andraya Yearwood has repeatedly achieved times faster than the elite girls’ times in Connecticut in the 55m event.
135. Based on Andraya Yearwood’s qualifying time in the 55m, Andraya is currently ranked first in the girls’ division for the Class S Championship and across all divisions.21
21 AthleticNet, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=112251&Event=46, last visited February 11, 2020.
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140. Chelsea has a chance of being the fastest girl in the State Open in the 55m dash and 300m for the 2020 Indoor season and securing a spot to advance to the New England Regional Championships.
141. Selina has a chance of competing for a top spot in the State Open in the 55m dash for the 2020 Indoor season and competing for a spot to advance to the New England Regional Championships.
142. But if Terry Miller and Andraya Yearwood are permitted to compete in the girls’ 55m event, it is likely that one or both of these males will deprive Chelsea and Selina of a victory position she has earned in the State Open Championship.
143. All three Plaintiffs intend to compete in the Spring 2020 track and field season. That season begins in March, and the first interscholastic meet subject to CIAC rules may be scheduled as early as April 4, 2020.
144. As Chelsea and Selina are seniors, the Spring 2020 track season is their final opportunity to compete in high school track and field events, to improve their scores, to win championships, to receive public recognition of their achievements, and to experience the thrill of victory.
145. Plaintiff Alanna Smith is a sophomore and expects to compete in CIAC track and field competitions next year and throughout her high school years. As noted in paragraph 98 above, Alanna has already been pushed down from an earned second place victory in a 2019 State Championship when male athlete Terry Miller took first place.
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146. Plaintiffs do not know what males or how many males will wish to compete in CIAC girls’ track and field events in the Spring 2020 season, or the coming academic year. In fact, they have no way to know that until the season starts, as illustrated by the fact that Terry Miller competed in the boys’ events in the Winter 2018 indoor season and just weeks later started competing in the girl’s events in the Spring 2018 outdoor season.
147. Each track season lasts only a few weeks. If Alanna waits until the start of the next season to seek injunctive relief, the season will be over before there can be any realistic hope of legal redress.
148. Because of the multiple different negative impacts on girls detailed in this Complaint, Plaintiffs are entitled to injunctive relief prohibiting all Defendants from permitting boys to participate in girls’ track and field competitions.
149. Failure to grant the requested relief will cause irreparable harm to Plaintiffs by continuing to deny them the experience of fair competition that reflects the athletic capabilities of female athletes, as well as the experience of victory and the recognition that can come from victory. Each meet, once over, cannot be redone. Each opportunity lost for participation in an elite meet cannot be recovered. There is no adequate remedy at law for this harm.
150. The continuing, irreparable harm caused by Defendants’ failure to provide equal competitive opportunities for girls in track and field far outweighs any cognizable harm that granting the harm might cause Defendants, because the requested injunctive relief is already mandated by federal law.
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151. CIAC publicly posts results of past State Championship meets on their website going back at least three years. In addition, schools including at least Defendant School Canton publicly post lists of championships won by their students, going back many years. As a result of competition by male athletes in girls’ events in violation of Title IX, female athletes including Plaintiffs have been denied accurate public recognition of their athletic achievements and victories in these postings.
152. Plaintiffs are entitled to injunctive relief requiring all Defendants to correct all league or school records, public or private, to accurately reflect the achievements of these girls in competition against other girls, not against males.
153. Failure to grant this requested relief will cause irreparable harm to Plaintiffs by continuing to deprive them of public recognition for their hard-earned athletic accomplishments. There is no adequate remedy at law for this harm.
154. The continuing, irreparable harm caused by Defendants’ posting of inaccurate records resulting from the unlawful CIAC Policy outweighs any cognizable harm that granting the harm might cause Defendants, because the requested injunctive relief is already mandated by federal law.
COUNT I: TITLE IX Sex Discrimination by Failing to Provide Effective Accommodation for the
Interests and Abilities of Girls 155. Plaintiffs reallege and incorporate by reference all of the foregoing paragraphs of this Complaint. 156. All Defendants are subject to the obligations of Title IX.
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157. Defendants have chosen to provide athletic opportunities in track and field separated by sex.
158. As a result, Defendants have an obligation to provide competitive opportunities for females that accommodate the physical abilities of girls in a manner that ensures that female athletes face competitive opportunities “which equally reflect their abilities” and which provide equal opportunity in . . . levels of competition” as compared to the competitive opportunities enjoyed by boys.
159. As a result of profound physiological differences between the sexes after puberty, the athletic abilities of girls relevant to track and field competitions are not equal to those of comparably fit and trained boys.
160. As a result of this inescapable difference, by permitting males to compete in girls’ track and field events, all Defendants have violated their duty to provide competitive opportunities for female athletes that accommodate their abilities and provide equal opportunities in levels of competition, as illustrated by the fact that in events where males have actually been permitted in elite postseason competitions, boys have been awarded far more first place victories and recognitions than girls, and far more opportunities to advance to state finals.
161. All Plaintiffs are harmed by Defendants' failure to provide competitive opportunities that fairly and effectively accommodate the athletic abilities of girls.
162. Such harm includes loss of the experience of fair competition; loss of victories and the public recognition associated with victories; loss of opportunities to
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advance to higher-level competitions; loss of visibility to college recruiters; emotional distress, pain, anxiety, and other damages to be proven at trial.
163. Accordingly, Plaintiffs are entitled to the relief requested herein.
COUNT II: Title IX Sex Discrimination by Failing to Provide Equal Treatment, Benefits and
Opportunities for Girls 164. Plaintiffs reallege and incorporate by reference all of the foregoing paragraphs of this Complaint. 165. All Defendants are subject to the obligations of Title IX. 166. Defendants have chosen to provide athletic opportunities in track and field separated by sex. 167. As a result, all Defendants have an obligation to ensure that female athletes receive equivalent treatment, benefits and opportunities in athletic competition as compared to boys. 168. Equivalent treatment and opportunities require equal opportunities to engage in post-season competition, and more broadly the right to be free of any policies which are “discriminatory in language or effect” or have the effect of denying “equality of athletic opportunity.” 169. As detailed herein, the CIAC Policy deprives female athletes, including Plaintiffs Chelsea Mitchell, Selina Soule, and Alanna Smith, of equal opportunities to engage in post-season competition, is discriminatory in effect, and denies girls equality in athletic opportunities, including equal opportunities to achieve and be recognized for victory.
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170. By providing track and field competitive opportunities for girls subject to the CIAC policy that permits males to participate in girls’ events and be recognized as winners of girls’ events, all Defendants have violated their obligation under Title IX to provide equal treatment, benefits and opportunities in athletic competition to girls.
171. All Plaintiffs are harmed by Defendants' failure to provide competitive opportunities that fairly and effectively accommodate the athletic abilities of female athletes. Such harm includes loss of the experience of fair competition; loss of victories and the public recognition associated with victories; loss of opportunities to advance to higher-level competitions; loss of visibility to college recruiters; emotional distress, pain, anxiety, and other damages to be proven at trial.
172. Accordingly, Plaintiffs are entitled to the relief requested herein. PRAYER FOR RELIEF
Plaintiffs respectfully request that this Court enter judgment against Defendants and grant Plaintiffs the following relief:
(A) A declaration that Defendants have violated Title IX by failing to provide competitive opportunities that effectively accommodate the abilities of girls;
(B) A declaration that Defendants have violated Title IX by failing to provide equal treatment, benefits, and opportunities for girls in in athletic competition;
(C) An injunction prohibiting all Defendants, in interscholastic athletic competitions sponsored, organized, or participated in by the Defendants or any of them, from permitting males—individuals with an XY genotype—from participating in events that are designated for girls, women, or females;
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(D) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove male athletes from any record or recognition purporting to record times, victories, or qualifications for elite competitions designated for girls or women, and conversely to correctly give credit and/or titles to female athletes who would have received such credit and/or titles but for the participation of males in such competitions;
(E) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove times achieved by male athletes from any records purporting to record times achieved by girls or women;
(F) An award of nominal and compensatory damages and other monetary relief as permitted by law;
(G) An award of Plaintiffs’ reasonable attorneys’ fees and expenses, as authorized by 42 U.S.C. § 1988;
(H) Such other and further relief as the Court deems appropriate.
Respectfully submitted this 12th day of February, 2020.
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By: s/ Howard M. Wood III__
Howard M. Wood III CT Bar No. 68780, CT Fed. Bar No. 08758 James H. Howard CT Bar No 309198, CT Fed. Bar No 07418 Fiorentino, Howard & Petrone, P.C. 773 Main Street Manchester, CT 06040 Telephone: (860) 643-1136 Fax: (860) 643-5773 Email: howard.wood@pfwlaw.com Email: james.howard@pfwlaw.com
Roger G. Brooks* NC Bar No. 16317 Jeffrey A. Shafer* OH Bar No. 0067802 Alliance Defending Freedom 15100 N. 90th Street Scottsdale, Arizona 85260 Telephone: (480) 444-0020 Fax: (480) 444-0028 Email: rbrooks@ADFlegal.org Email: jshafer@ADFlegal.org
Kristen K. Waggoner** D.C. Bar No. 242069 Christiana M. Holcomb* D.C. Bar No. 176922 Alliance Defending Freedom 440 First St. NW, Suite 600 Washington, D.C. 20001 Telephone: (202) 393-8690 Fax: (202) 347-3622 Email: kwaggoner@ADFlegal.org Email: cholcomb@ADFlegal.org
Attorneys for Plaintiffs
*Pro Hac Vice Motions filed contemporaneously **Pro Hac Vice Motion forthcoming
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 Case 3:20-cv-00201-RNC Document 89 Filed 04/17/20 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a minor, by Christina Mitchell, her mother; ALANNA SMITH, a minor, by Cheryl Radachowsky, her mother; ASHLEY NICOLETTI, a minor, by Jennifer Nicoletti, her mother,

Case No.: 3:20-CV-00201-RNC
AMENDED VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES

Plaintiffs,
v.
CONNECTICUT ASSOCIATION OF SCHOOLS d/b/a CONNECTICUT INTERSCHOLASTIC ATHLETIC CONFERENCE; BLOOMFIELD PUBLIC SCHOOLS BOARD OF EDUCATION; CROMWELL PUBLIC SCHOOLS BOARD OF EDUCATION; GLASTONBURY PUBLIC SCHOOLS BOARD OF EDUCATION; CANTON PUBLIC SCHOOLS BOARD OF EDUCATION; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION,

JURY TRIAL REQUESTED Dated: April 17, 2020

Defendants.

INTRODUCTION 1. The Plaintiffs are four high school girls who compete in interscholastic girls’ track and field in Connecticut. Like large numbers of female athletes around the nation, each Plaintiff has trained much of her life—striving to shave mere fractions of seconds off her race times—in order to experience the personal satisfaction of victory, gain opportunities to participate in state and regional meets, gain access to opportunities to be recruited and offered athletic scholarships by colleges, and more. 2. Unfortunately for Plaintiffs and other girls in Connecticut, those dreams and goals—those opportunities for participation, recruitment, and scholarships—are now being

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directly and negatively impacted by a new policy that is permitting students1 who are biologically male to compete in girls’ athletic competitions if they claim a female gender identity.
3. This discriminatory policy is now regularly resulting in boys displacing girls in competitive track events in Connecticut—excluding specific and identifiable girls including Plaintiffs from honors, opportunities to compete at higher levels, and public recognition critical to college recruiting and scholarship opportunities that should go to those outstanding female athletes.
4. As a result, in scholastic track competition in Connecticut, more boys than girls are experiencing victory and gaining the advantages that follow, even though postseason competition is nominally designed to ensure that equal numbers of boys and girls advance to higher levels of competition. In the state of Connecticut students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born male.
5. This reality is discrimination against girls that directly violates the requirements of Title IX: “Treating girls differently regarding a matter so fundamental to the experience of sports—the chance to be champions—is inconsistent with Title IX’s mandate of equal
1 Because Title IX focuses on equal opportunities between the sexes, because this Complaint is precisely concerned with effects of biological differences between males and females, because the terms “boys” and “men” are commonly understood to refer to males, and to avoid otherwise inevitable confusion, we refer generally in this complaint to athletes who are biologically male as “boys” or “men,” and to athletes who are biologically female as “girls” or “women.”
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opportunity for both sexes.” McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 295 (2d Cir. 2004).
I. JURISDICTION AND VENUE 6. This action pursuant to Title IX, 20 U.S.C. § 1681, et seq. and its interpreting regulations, raises federal questions and seeks redress for deprivation of rights protected by federal law. 7. This Court has original jurisdiction over the claims asserted in this Complaint under 28 U.S.C. § 1331, which provides jurisdiction for claims raising questions of federal law, and 28 U.S.C. § 1343(a), which provides jurisdiction for claims seeking vindication of civil rights protected by federal law. 8. This Court has authority to award the requested declaratory relief under 28 U.S.C. § 2201. This Court has authority to award the other relief requested under 28 U.S.C. § 2202. 9. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in this District and all Plaintiffs and Defendants reside or have their principal place of business in Connecticut.
II. PARTIES A. Plaintiffs
10. Plaintiff Selina Soule is a twelfth-grade female student and varsity track and field athlete at Glastonbury High School. Because Selina Soule is a minor, she brings this action by her mother, Bianca Stanescu.
11. Plaintiff Chelsea Mitchell is a twelfth-grade female student and varsity track and field athlete at Canton High School. Because Chelsea Mitchell is a minor, she brings this action by her mother, Christina Mitchell.
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12. Plaintiff Alanna Smith is a tenth-grade female student and varsity track and field athlete at Danbury High School. Because Alanna Smith is a minor, she brings this action by her mother, Cheryl Radachowsky.
13. Plaintiff Ashley Nicoletti is a tenth-grade female student and varsity track and field athlete at Immaculate High School in Danbury, Connecticut. Because Ashley Nicoletti is a minor, she brings this action by her mother, Jennifer Nicoletti.
14. Selina Soule, Bianca Stanescu, Chelsea Mitchell, Christina Mitchell, Alanna Smith, Cheryl Radachowsky, Ashley Nicoletti, and Jennifer Nicoletti all reside within the District of Connecticut.
B. Defendants 15. Defendant Bloomfield Public Schools Board of Education is located in
Bloomfield, Connecticut, and has entered and continues to enter T.M. —a student born male and possessed of a male body— in Connecticut Interscholastic Athletic Conference (CIAC) girls’ athletic competitions.
16. Defendant Cromwell Public Schools Board of Education is located in Cromwell, Connecticut, and has entered and continues to enter Andraya Yearwood—a student born male and possessed of a male body—in CIAC girls’ athletic competitions.
17. Defendant Glastonbury Public Schools Board of Education is located in Glastonbury, Connecticut, and provides opportunities for interscholastic competition for its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
18. Defendant Canton Public Schools Board of Education is located in Canton, Connecticut, and provides opportunities for interscholastic competition for its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
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19. Defendant Danbury Public Schools Board of Education is located in Danbury, Connecticut, and provides opportunities for interscholastic competition for its students only through events sanctioned by and subject to the discriminatory policies of CIAC.
20. On information and belief, each of Bloomfield Public Schools, Cromwell Public Schools, Glastonbury Public Schools, Canton Public Schools, and Danbury Public Schools (collectively, “the Defendant Schools”), receives federal financial assistance.
21. All programs at the Defendant Schools are therefore subject to the requirements of Title IX.
22. Defendant Connecticut Association of Schools, Inc., which operates and is referred to herein under the name of the Connecticut Interscholastic Athletic Conference (CIAC) is a Connecticut not-for-profit corporation with its headquarters in Cheshire, Connecticut. CIAC is the “sole governing body for inter-scholastic athletic activities in Connecticut,” and “directs and controls” all high school athletics for boys and girls in Connecticut.
23. CIAC is funded by dues from member schools that are subject to the obligations of Title IX. According to CIAC, “[v]irtually all public and parochial high schools in Connecticut are dues-paying members.”
24. All Defendant Schools are dues-paying members of the CIAC. 25. On information and belief, all public schools in Connecticut receive federal funds covered by Title IX, and thus are subject to the requirements of Title IX. 26. CIAC is subject to the obligations of Title IX because it indirectly receives federal funding from its public member-schools, see 34 C.F.R. § 106.2(i). 27. CIAC is also controlled by member schools that are subject to the obligations of Title IX. The CIAC Board of Control is elected by the member schools, and a majority of the
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CIAC Board of Control are principals or other senior administrators of member schools. CIAC policies are established by the principals of the member schools, through the CIAC Legislative Body which is made up of the principals of all member schools.
28. On information and belief, the majority of CIAC member schools receive federal funds and are subject to the obligations of Title IX.
29. CIAC is separately subject to the obligations of Title IX because, on information and belief, it receives and accepts federal grant monies. For example, in 2018 CIAC received a grant of more than $350,000 from Special Olympics Connecticut, Inc., which on information and belief was funded in whole or in substantial part by a grant from the United States Department of Education to Special Olympics, Inc., the national parent organization of Special Olympics Connecticut, Inc. for the purpose of funding state-level organizations such as CIAC. On information and belief CIAC continues to receive and accept federal grant monies up to the present.
30. CIAC controls and governs competition in 27 sports across three seasons each year, including Winter Indoor Track and Spring Outdoor Track. CIAC designates some sports only for boys (e.g. football and baseball), different sports only for girls (e.g. softball), and other sports for both boys and girls (e.g. swimming and track).
31. For the latter sports, though, CIAC and its member schools have historically separated teams and competitions at the high school level by sex, or at least prohibited boys from competing in the girls’ events.
32. Each Defendant School actively works with and assists CIAC to schedule and organize interscholastic athletic competitions, including track and field meets, that are conducted subject to CIAC rules including the CIAC policy at issue in this litigation. Each defendant board
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of education causes the schools and athletic programs under its authority to abide by the rules, regulations, and qualifications of CIAC concerning eligibility, competition rules, and tournament policies and procedures.
III. FACTUAL BACKGROUND A. The Goals and Requirements of Title IX, and Its Impact on Women’s Athletics.
33. In 1972, Congress enacted Title IX, 20 U.S.C. § 1681, which forbids education programs or activities receiving federal financial assistance from discriminating against persons based on their sex. It provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a).
34. Title IX was designed to eliminate significant “discrimination against women in education.” Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763, 766 (9th Cir. 1999).
35. According to one of its primary sponsors, Senator Birch Bayh, Title IX promised women “an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for work.” 118 Cong. Rec. 5808 (1972).
36. Before the enactment of Title IX in 1972, schools often emphasized boys’ athletic programs “to the exclusion of girls’ athletic programs,” Williams v. School District of Bethlehem, 998 F.2d 168, 175 (3rd Cir. 1993), and vastly fewer girls participated in competitive interscholastic athletics than did boys.
37. Many have argued that the competitive drive and spirit taught by athletics is one important educational lesson that carries over and contributes to lifetime success in the
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workplace. Certainly, implementing regulations make clear that Title IX applies in full force to athletic programs sponsored by recipients of federal financial assistance:
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a).
38. In the statute, Congress expressly delegated authority to the United States Department of Health, Education and Welfare (HEW) to promulgate regulations interpreting Title IX. 20 U.S.C. §1682. In 1975, HEW promulgated regulations that are codified at 34 C.F.R. Part 106 (collectively, the “Regulations”). Further, in 1979, the Department of Education Office for Civil Rights (OCR) issued a policy interpretation of Title IX and the Regulations to provide recipients with more specific guidance about the statute’s application to intercollegiate athletics. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the “Policy Interpretation”). Courts have recognized that the Policy Interpretation is also applicable to high school athletic programs. The Policy Interpretation was further clarified by OCR through issuance of OCR’s 1996 Clarification of Intercollegiate Athletics Policy Guidance: The ThreePart Test (the “OCR Clarification”).
39. Title IX and its implementing regulations and guidance require that, if an entity subject to Title IX provides athletic programs or opportunities separated by sex, then it must do so in a manner that “provide[s] equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).
40. As one aspect of equal athletic opportunity, implementing regulations and guidance state that provided athletic opportunities must “effectively accommodate the interests and abilities” of girls, as well as of boys. 34 C.F.R. § 106.41(c). Here, the “governing principle”
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is that “the athletic interests and abilities of male and female students must be equally effectively accommodated.” Policy Interpretation, 44 Fed. Reg. at 71,414. More specifically, the institution must accommodate the physical abilities of girls and women “to the extent necessary to provide equal opportunity in . . . levels of competition,” and competitive opportunities “which equally reflect their abilities.” Policy Interpretation, 44 Fed. Reg. at 71,417-418.
41. As another aspect of equal athletic opportunity, implementing regulations and guidance state that male and female athletes “should receive equivalent treatment, benefits and opportunities.” Policy Interpretation, 44 Fed. Reg. at 71,415. The “equal treatment” to which girls and women are entitled includes equal “opportunities to engage in . . . post-season competition,” id. at 71,416, equal opportunities for public recognition, 34 C.F.R. § 106.41(c), and the right to be free of any policies which are “discriminatory in . . . effect” or that have the effect of denying “equality of athletic opportunity.” 44 Fed. Reg. at 71,417.
42. Title IX has been strikingly successful towards its intended goals. “For example, between 1972 and 2011, girls’ participation in high school athletics increased from approximately 250,000 to 3.25 million students.” U.S. Dept. of Educ., OCR, Protecting Civil Rights, Advancing Equity 33 (2015), https://bit.ly/2VF516Q. In college, women’s numbers have grown almost as steeply, from 30,000 to more than 288,000 in 2017-18.2 Following the United States’ famed 1999 Women’s World Cup win, the Ninth Circuit wrote that:
“The victory sparked a national celebration and a realization by many that women’s sports could be just as exciting, competitive, and lucrative as men’s sports. And the victorious athletes understood as well as anyone the connection between a 27–year–old statute [Title IX] and tangible progress in women’s athletics.” Neal, 198 F.3d at 773.
2 Doriane Lambelet Coleman et al., Re-Affirming the Value of the Sports Exception to Title IX’s General NonDiscrimination Rule, Duke Journal of Gender Law Policy (forthcoming February 2020), available at SSRN: https://ssrn.com/abstract=3523305, citing https://ope.ed.gov/athletics/#/.
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B. Equal Opportunities in Athletics and the Physiological Differences Between the Sexes.
43. What Title IX does not require—or even permit—is that recipients blind themselves to students’ sex when developing their athletic programs. Sponsors of the statute made that much clear during the debates in Congress,3 and implementing regulations expressly permit schools to sponsor sex-specific teams “where selection for such teams is based on competitive skill or the activity involved is a contact sport.” 34 C.F.R. 106.41(b).
44. In fact, ignoring the physical differences between the sexes would in many sports make it impossible to “accommodate the . . . abilities” of girls and women, and to provide athletic opportunities of equal quality to girls and women. In 1975, Dr. Bernice Sandler—who is frequently recognized as “the Godmother of Title IX”— told the House Subcommittee on Postsecondary Education, while testifying in support of regulations implementing Title IX, that to operate an entirely coed athletic program, ignoring differences in male and female physiology, would for many sports “effectively eliminate opportunities for women to participate in organized competitive athletics. For these reasons, such an arrangement would not appear to be in line with the principle of equal opportunity.” Statement of Dr. Bernice Sandler, Director, Project on the Status & Education of Women, Ass’n of American Colleges, June 25, 1975, Hearings on Sex Discrimination Regulations at 343.
45. Dr. Sandler was correct. Permitting males to compete in girls’ or women’s athletic events doesn’t merely add a new level of challenge for determined girls and women. Victory over comparably talented and trained male athletes is impossible for girls and women in the vast
3 S. Ware, Title IX: A Brief History with Documents, at 13 (2007).
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majority of athletic competitions, because of inherent and biologically dictated differences between the sexes.
46. While boys and girls have comparable athletic capabilities before boys hit puberty, male puberty quickly increases the levels of circulating testosterone in healthy teen and adult males to levels ten to twenty times higher than the levels that occur in healthy adult females, and this natural flood of testosterone drives a wide range of physiological changes that give males a powerful physiological athletic advantage over females.
47. The athletic performance-enhancing effects of testosterone are well known, and the anabolic steroids too often used by athletes to gain an unfair and prohibited advantage are often synthetic modifications of testosterone. Basically, from puberty on, boys and men have a large, natural, and equally unfair “doping” advantage over girls and women.
48. Physiological athletic advantages enjoyed over girls and women by similarly fit males after puberty include:
a. Larger lungs and denser alveoli in the lungs, enabling faster oxygen uptake;
b. Larger hearts and per-stroke pumping volume, and more hemoglobin per unit of blood, all enabling higher short-term and sustained levels of oxygen transport to the muscles;
c. An increased number of muscle fibers and increased muscle mass (for example, men have 75%-100% greater cross-sectional area of upper arm muscle than do comparably fit women, while women have 60-70% less trunk and lower body strength than comparably fit men);
d. Higher myoglobin concentration within muscle fibers, enabling faster transfer and “cellular respiration” of oxygen within the muscle to unleash power;
e. Larger bones, enabling the attachment of greater volumes of muscle fiber; f. Longer bones, enabling greater mechanical leverage thus enabling males
to unleash more power, e.g., in vertical jumps;
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g. Increased mineral density in bones resulting in stronger bones, providing superior protection against both stress fractures and fractures from collisions;
h. And, of course, U.S. adult males are on average 5 inches taller than U.S. adult women.
49. Meanwhile, female puberty brings distinctive changes to girls and women that identifiably impede athletic performance, including increased body fat levels which—while healthy and essential to female fertility—creates increased weight without providing strength, as well as wider hips and different hip joint orientation that result in decreased hip rotation and running efficiency.
50. These are inescapable biological facts of the human species, not stereotypes, “social constructs,” or relics of past discrimination.
51. As a result of these many inherent physiological differences between men and women after puberty, male athletes consistently achieve records 10-20% superior to comparably fit and trained women across almost all athletic events, with even wider consistent disparities in long-term endurance events and contests of sheer strength such as weight-lifting.
52. The basic physiological differences between males and females after puberty have long been recognized and respected by the different standards set for boys and girls in a number of athletic events. For example:
a. The net height used for women’s volleyball is more than 7 inches lower than that used for men’s volleyball.
b. The standard weight used in high school shot put is 4 kilograms for girls, and 5.44 kilograms (36% heavier) for boys.
c. The hurdle height used for the high school girls’ 100-meter hurdle event is 33 inches, whereas the standard height used for boys’ high school 110meter hurdle is 39 inches.
d. The standard women’s basketball has a circumference of 28 1/2 to 29 inches and a weight of 20 oz, while a standard basketball used in a men’s
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game has a circumference between 29 1/2 to 30 inches and a weight of 22 oz. 53. In track and field events that do not use equipment, the physiological differences between males and females after puberty are stark in the record books. No one doubts that top male and female high school athletes are equally committed to excelling in their sport, and train equally hard. Yet boys and men consistently run faster and jump higher and farther than girls and women. 54. For example, in 2017, thousands of men and boys achieved times in the 400m faster than the best lifetime performances of three women Olympic champions in that event. Each year, thousands of men—and dozens or hundreds of high school boys under the age of 18—achieve times (or heights or distances) in track events better than the world’s single best elite woman competitor that year. 55. As Duke Law professor and All-American track athlete Doriane Lambelet Coleman, tennis champion Martina Navratilova, and Olympic track gold medalist Sanya Richards-Ross recently wrote:
The evidence is unequivocal that starting in puberty, in every sport except sailing, shooting and riding, there will always be significant numbers of boys and men who would beat the best girls and women in head-to-head competition. Claims to the contrary are simply a denial of science. Team USA sprinter Allyson Felix has the most World Championship medals in history, male or female, and is tied with Usain Bolt for the most World Championship golds. Her lifetime best in the 400 meters is 49.26 seconds. In 2018 alone, 275 high school boys ran faster on 783 occasions. The sex differential is even more pronounced in sports and events involving jumping. Team USA’s Vashti Cunningham has the American record for high school girls in the high jump at 6 feet, 4½ inches. Last year just in California, 50 high school boys jumped higher. The sex differential isn’t the result of boys and men having a male gender identity, more resources, better training or superior discipline. It’s
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because they have androgenized bodies.4 56. As Professor Lambelet Coleman further explained in testimony before the House
Judiciary Committee on April 2, 2019, in track events even the world’s best women’s Olympic athletes “would lose to literally thousands of boys and men, including to thousands who would be considered second tier in the men’s category. And because it only takes three male-bodied athletes to preclude the best females from the medal stand, and eight to exclude them from the track, it doesn’t matter if only a handful turn out to be gender nonconforming.”5
57. This stark competitive advantage is equally clear at the high school level. To illustrate, the charts below show the best boys’ and girls’ times in the nation across five different high school track events during the 2019 indoor and outdoor season:

Table 1: Best High School Outdoor 100m Times in 20196

Boy

Time

Girl

Matthew Boling

9.98s

Briana Williams

Micah Williams Langston Jackson Joseph Fahnbulleh

10.21s 10.23s 10.23s

Semira Killebrew Thelma Davies Tamari Davis

Ryan Martin Kenan Christon Lance Broome Tyler Owens

10.26s 10.26s 10.27s 10.29s

Arria Minor Tianna Randle Taylor Gilling Kenondra Davis

Ryota Hayashi

10.29s

De’anna Nowling

Time 10.94s 11.24s 11.25s 11.27s 11.31s 11.32s 11.32s 11.36s 11.40s

4 Doriane Lambelet Coleman, Martina Navratilova, et al., Pass the Equality Act, But Don’t Abandon Title IX, Washington Post (Apr. 29, 2019), https://wapo.st/2VKlNN1. 5 Testimony and illustrating graphic at https://docs.house.gov/meetings/JU/JU00/20190402/109200/HHRG-116JU00-Wstate-LambeletColemanP-20190402.pdf, last visited February 11, 2020. 6 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Top.aspx?DivID=97967 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Top.aspx?DivID=97967&amp;gender=f (girls). These results were last visited February 11, 2020.
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Marquez Beason

10.30s

Jacious Sears

11.41s

Table 2: Best High School Outdoor 200m Times in 20197

Boy Matthew Boling Kenney Lightner Cameron Miller

Time 20.30s 20.48s 20.52s

Girl Briana Williams Thelma Davies Tamari Davis

Kenan Christon Kennedy Harrison Joseph Fahnbulleh

20.55s 20.60s 20.67s

Kayla Davis Taylor Gilling Arria Minor

Lance Broome

20.69s

Aaliyah Pyatt

Devon Achane Daniel Garland Langston Jackson

20.69s 20.73s 20.73s

Rosaline Effiong Jayla Jamison Dynasty McClennon

Time 22.88s 22.95s 22.96s 23.08s 23.10s 23.10s 23.11s 23.16s 23.19s 23.28s

Table 3: Best High School Outdoor 400m Times in 20198

Boy

Time

Girl

Justin Robinson

44.84s

Kayla Davis

Myles Misener Daley 45.62s

Jan’Taijah Ford

Emmanuel Bynum

46.24s

Athing Mu

Jayon Woodard

46.26s

Britton Wilson

Alex Collier

46.33s

Ziyah Holman

Jonah Vigil

46.43s

Kimberly Harris

Zachary Larrier

46.49s

Aaliyah Butler

Omajuwa Etiwe

46.51s

Caitlyn Bobb

Sean Burrell

46.52s

Talitah Diggs

Edward Richardson

46.55s

Aaliyah Butler

Time 51.17s 51.57s 51.98s 52.06s 52.12s 52.16s 52.25s 52.79s 52.82s 52.87s

7 Id. These results were last visited February 11, 2020. 8 Id. These results were last visited February 11, 2020.
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Table 4: Best High School Indoor 60m Times in 20199

Boy Micah Williams Lance Lang Marcellus Moore Mario Heslop Langston Jackson Javonte Harding

Time 6.60s 6.62s 6.65s 6.70s 6.74s 6.77s

Girl Tamari Davis Briana Williams Thelma Davies Moforehan Abinusawa Jacious Sears Semira Killebrew

LaCarr Trent

6.79s

Alexa Rossum

Justin Robinson Bryan Santos Tre Tucker

6.79s 6.79s 6.80s

Aliya Wilson Kaila Jackson Aja Davis

Time 7.27s 7.28s 7.30s 7.32s 7.33s 7.34s 7.40s 7.42s 7.44s 7.44s

Table 5: Best High School Indoor 800m Times in 201910

Boy

Time

Girl

Alfred Chawonza

110.57s

Athing Mu

Malcolm Going

110.85s

Roisin Willis

Miller Anderson

111.54s

Michaela Rose

Luis Peralta

112.21s

Victoria Vanriele

Jake Renfree

112.33s

Maggie Hock

Liam Rivard

112.42s

Lily Flynn

Conor Murphy

113.25s

Victoria Starcher

Miguel Parrilla

113.41s

Aleeya Hutchins

Time 123.98s 125.70s 126.93s 127.24s 127.68s 128.15s 128.32s 128.52s

9 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=42 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=42 (girls), last visited February 11, 2020. 10 Results listed in this table are publicly available online at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=4 (boys), and at AthleticNET, https://www.athletic.net/TrackAndField/Division/Event.aspx?DivID=102510&Event=22 (girls), last visited February 11, 2020.
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Darius Kipyego Theo Woods

113.43s 113.53s

Sarah Trainor Makayla Paige

128.60s 128.97s

58. In 2016, Vashti Cunningham set the high school American record in the girls’ high jump at 6 feet, 4½ inches, and went on to represent the United States at the Olympics in that same year. Yet to quote Professor Lambelet Coleman again, if the 2016 girls’ high school track competition had been open to males, “Cunningham would not have made it to her state meet, she would not be on the national team, and we would not know her name other than as a footnote on her father’s Wikipedia page.” And for the vast number of girls who benefit from the experience of competitive athletics even if they are not future champions, “if sport were not sex segregated, most school-aged females would be eliminated from competition during the earliest rounds.” (Coleman 2020 at 20-21.)
59. Plaintiffs do not know whether or if so at what time the students with male bodies who are competing in girls’ CIAC track events began taking cross-sex hormones. Nor does this matter. Administering testosterone-suppressing drugs to males by no means eliminates their performance advantage. Some physiological advantages—such as bone size and hip configuration—cannot be reversed once they have occurred. And suppressing testosterone in men after puberty also does not completely reverse their advantages in muscle mass and strength, bone mineral density, lung size, or heart size.
60. This reality is evident in the performance of male athletes who have competed as women after taking cross-sex hormones. For example, CeCe Telfer, a male who ran as Craig Telfer throughout high school and the first two years of college, certified compliance with the NCAA requirement of one year on testosterone-suppressing drugs and began competing in female track events in CeCe’s senior collegiate year, for the 2019 indoor and outdoor track and

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field seasons. CeCe’s “personal best” did not go down substantially in any event following at least a year on testosterone suppressing drugs, and in a number of events instead improved:

Table 6: Comparison of “Craig” and “CeCe” Telfer Performance Times Before and After Hormone Suppression

Event Indoor 200 Meter Dash Indoor 60 Meter Hurdles Outdoor 100 Meter Dash Outdoor 400 Meter Hurdles

“Craig” Telfer 24.64s (2017) 8.91s (2018) 12.38s (2017) 1:02.00s (2017)

“Cece” Telfer 24.45s (2019) 8.33s (2019) 12.24s (2019) 57.53s (2019)

61. Not surprisingly, while Craig Telfer ranked 212th and 433rd in the 400-meter hurdles among men’s Division II athletes in 2016 and 2017 respectively, CeCe Telfer took the Division II national championship in women’s 400 meter hurdles in 2019.
62. Minna Sveard, the fastest female runner, finished almost a full two seconds behind Telfer, and was recognized only as coming in second.
63. In short, if males compete in girls’ events after puberty, equally gifted and dedicated female athletes simply can’t win.
C. Increasing Numbers of Girls Are Losing Athletic Victories and Opportunities to Transgender Competitors Today.
64. In the past, it has been argued that the unfair impact of males competing in girls’ and women’s categories would be trivial, because few males will wish to do so. But over just the last few years, the problem of boys and men taking opportunities from girls and women has grown very rapidly.
65. As increasing numbers of males are in fact competing in girls' and women’s events each year, girls are in fact losing, and males are seizing one “girls’” or “women’s” championship and record after another.

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66. Meanwhile, multiple sources report that the percentage of children identifying as transgender has multiplied rapidly within just the last few years.
67. As a larger wave of males claiming transgender identity as girls and women hits high school and college, the number of girls losing out on varsity spots, playing time, medals, advancement to regional meets, championship titles and records, and recognition on the victory podium, will also multiply. Indeed, given that it only takes three males to sweep the titles at local, regional, and national competitions entirely, and given the hard physiological facts reviewed above, if increasing number of males compete in girls’ and women’s athletics, those born female—girls—will simply vanish from the victory podium and national rankings.
68. This wave of lost opportunities and lost equality for girls is all the more inevitable when males are not merely permitted to take girls’ slots and girls' titles, but are praised by schools and media as “courageous” and hailed as “female athlete of the year” when they do so.
69. Perhaps worse, if the law permits males to compete as girls in high school, then there is no principled basis on which colleges can refrain from recruiting these “top performing girls” (in reality genetically and physiologically male) for their “women’s teams” and offering them the “women’s” athletic scholarships.
70. In sum, because schools are permitting students possessing male physiology to compete against girls and women, girls and women are losing competitive opportunities, the experience of fair competition, and the opportunities for victory and the satisfaction, public recognition, and scholarship opportunities that can come from victory. More, girls and young women are losing their dreams. To American girls the message is, “Give up. You can’t win.”
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IV. THE DISCRIMINATORY CIAC POLICY AND ITS IMPACT ON GIRLS A. CIAC Adopts a New Policy Allowing Boys to Compete in Girls’ Events.
71. CIAC rightly deems athletics an “integral” part of the state’s “total educational program.”
72. CIAC declares that it seeks to offer athletic experiences that satisfy the highest “expectations for fairness, equity, and sportsmanship for all student-athletes and coaches” in order to maximize high school students’ “academic, social, emotional, and physical development.”
73. However, at some time before 2017, CIAC adopted a policy (“the CIAC Policy” or “the Policy”) pursuant to which CIAC and member schools began allowing boys who identify as girls to compete in girls’ athletic events.
74. The CIAC Policy determines—and requires member schools to determine— eligibility to compete in sex-specific athletic competitions solely based on “the gender identification of that student in current school records and daily life activities in the school . . . .”
75. As detailed later in this Complaint, CIAC and its member schools have permitted male students to switch, from one season to the next, from competing in boys’ events to competing (and winning) in girls’ events.
76. At the time that the CIAC adopted the CIAC Policy, all Defendants were aware that after puberty, a male who competes in girls’ events gains an “unfair advantage in competitive athletics” (CIAC By-Laws Article IX, Section B) due to physiological changes that occur during male puberty.
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Case 3:20-cv-00201-RNC Document 89 Filed 04/17/20 Page 21 of 49
B. CIAC’s Policy Has Resulted in Unequal Opportunities for Girls in Track and Field Competitions in Connecticut.
77. As a result of CIAC’s policy, two students who were born genetically and physiologically male and have male bodies, T.M. and Andraya Yearwood, were permitted to compete in girls’ athletic competitions beginning in the 2017 track season.
78. Between them, T.M. and Andraya have taken 15 women’s state championship titles (titles held in 2016 by nine different Connecticut female athletes) and have taken more than 85 opportunities to participate in higher level competitions from female track athletes in the 2017, 2018, and 2019 seasons alone. In this section, we detail this adverse impact on girls and young women.
79. To understand how opportunities to participate in higher levels of athletic competition are determined for student athletes, it is necessary to understand how CIAC has organized interscholastic track and field competition in Connecticut. First, based on performance throughout the season, including in both regular and invitational meets, students may qualify to participate in state “Class” championships, with schools grouped by size (S, M, L, and LL). Thus, for example, a student might win the “Class M Women’s Outdoor Track 100m” State championship. Next, the top-performing students within each State Class championship qualify to participate in the State Open championships, in which the top athletes in the state compete against each other regardless of the size of the school that they attend. And finally, the top performers in the State Open championships qualify to participate in the New England Championship.
80. All names, times, and other information provided in this section are taken from public sources, including Connecticut high school track records available on AthleticNET, at the
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web addresses indicated. The records of male athletes competing in women’s events are indicated with gray shading.
81. In 2017, Andraya’s freshman season, Andraya won CIAC’s Class M state championship in both the women’s outdoor 100m and 200m events:

Table 7: 2017 CIAC Class M Women’s Outdoor Track 100m Results (May 30, 2017)11

Place Grade Sex Name

Time

High School

1*

9

M Andraya Yearwood

12.66s Cromwell

2*

11

F

Kate Hall

12.83s Stonington

3*

11

F

Erika Michie

12.93s Woodland

4*

10

F

Raianna Grant

13.17s Waterbury Career Academy

5*

9

F

Se-raya Steward

13.18s Kaynor Tech

6

12

F

Jon-yea McCooty

13.30s Northwest Catholic

7

12

F

Libby Spitzchuh

13.35s Valley Regional

* Qualified for the State Open.

Table 8: 2017 CIAC Class M Women’s Outdoor Track 200m Results (May 30, 2017)12

Place Grade Sex Name

Time High School

1*

9

M Andraya Yearwood

26.08s Cromwell

2*

11

F Erika Michie

3*

11

F Kate Hall

4*

11

F Zora LaBonte

26.38s 26.65s 26.80s

Woodland Stonington Waterford

5*

11

F Victoria Bower

6

10

F Raianna Grant

7

10

F Sheena Wolliston

27.05s 27.26s 27.30s

Rocky Hill Waterbury Career Academy Northwest Catholic

* Qualified for the State Open.

11 AthleticNET, https://www.athletic.net/TrackAndField/MeetResults.aspx?Meet=306447&show=all, last visited February 11, 2020. 12 Id.
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Case 3:20-cv-00201-RNC Document 89 Filed 04/17/20 Page 23 of 49
82. But for CIAC’s policy that allows biological males to compete in girls-only events, Kate Hall and Erika Michie would each have won first place in the Class M championship in one of these events in 2017.
83. In 2016, two different girls did win these Class M state championship titles. 84. Because only the top five finishers in each event qualified to participate in the Outdoor State Open championship, the decision of CIAC and Defendant Cromwell Board of Education to permit Andraya Yearwood to compete in these girls’ events deprived Jon-yea McCooty and Raianna Grant of the opportunities that they had rightfully earned to compete in the State Open championship. 85. When one female athlete was asked about her loss, she said, “I can’t really say what I want to say, but there’s not much I can do about it.” 86. It is starkly contrary to the terms, spirit, and goals of Title IX to tolerate a policy which first deprives a girl of an opportunity to participate in elite competition which she has rightfully earned, and then additionally intimidates her into silence about the injustice she has suffered. Nevertheless, Plaintiffs, too, have felt both the injustice and the sense of intimidation and silencing that this girl expressed. 87. Under CIAC’s Policy, Andraya advanced to the 2017 State Open Women’s Outdoor Track competition, where—still a freshman—Andraya again deprived a girl of a statewide title and opportunity to advance to still higher levels of competition that she had rightfully earned. But for CIAC’s policy, Plaintiff Chelsea Mitchell—then a fourteen-year-old freshman—would have had the nearly unprecedented opportunity to qualify as a freshman for the New England Regional Championships:
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Case 3:20-cv-00201-RNC Document 89 Filed 04/17/20 Page 24 of 49

Table 9: 2017 CIAC State Open Women’s Outdoor Track 100m Results (June 5, 2017)13

Place Grade Sex Name

1*

12

F Caroline O’Neil

Time High School 12.14s Daniel Hand

2*

12

F Kathryn Kelly

3*

9

M Andraya Yearwood

4*

11

F Tia Marie Brown

12.36s 12.41s 12.44s

Lauralton Hall Cromwell Windsor

5*

12

F Kiara Smith

6*

11

F Kate Hall

7

9

F Chelsea Mitchell

8

12

F Tiandra Robinson

12.59s 12.62s 12.69s FS

Jonathan Law Stonington Canton Weaver

* Qualified for the New England Championship.

88. In the Winter 2017, Spring 2017, and Winter 2018 seasons, T.M. competed in

boys’ indoor or outdoor track events and did not advance to any state class or open

championships in individual events. Just weeks after the conclusion of the Winter 2018 indoor

season, T.M. abruptly appeared competing in the girls’ events in the Spring 2018 outdoor track

season.

89. T.M.’s switch to competing in the girls’ events immediately and systematically

deprived female athletes of opportunities to advance and participate in state-level competition.

According to AthleticNET records, T.M. never lost a women’s indoor 55m or 300m final in the

2018 or 2019 track seasons. Nor has T.M. lost a women’s outdoor 100m final in which T.M.

competed.

90. T.M. has also displaced a girl in numerous elimination track events in which T.M.

competed. At the 2018 outdoor State Open, for example, T.M. won the women’s 100m event by

13 AthleticNet, https://www.athletic.net/TrackAndField/meet/306453/results/f/1/100m, last visited February 11, 2020.
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a wide margin, while Andraya finished second. But for CIAC’s policy, Bridget Lalonde would have won first place statewide in that event, Chelsea Mitchell would have won second place statewide, and Tia Marie Brown and Ayesha Nelson would have qualified to compete in the New England Championship:

Table 10: 2018 CIAC State Open Championship Women’s Outdoor Track 100m Results (June 4, 2018)14

Place Grade Sex Name

Time High School

1*

10

M T.M.

2*

10

M Andraya Yearwood

3*

11

F Bridget Lalonde

11.72s 12.29s 12.36s

Bulkeley Cromwell RHAM

4*

10

F Chelsea Mitchell

12.39s Canton

5*

11

F Maya Mocarski

6*

10

F Selina Soule

7

12

F Tia Marie Brown

12.47s 12.67s 12.71s

Fairfield Ludlowe Glastonbury Windsor

8

11

F Ayesha Nelson

12.80s Hillhouse

* Qualified for the New England Championship.

91. The 2019 State Indoor Open saw similar results and a similar impact. T.M. and Andraya finished first and second respectively in both the preliminary and final Women’s 55m races, each time defeating the fastest girl by a wide margin:

Table 11: 2019 CIAC State Open Championship Women’s Indoor Track 55m Preliminary Results (February 16, 2019)15

Place Grade Sex Name

Time High School

1*

11

M T.M.

7.00s Bloomfield

2*

11

M Andraya Yearwood

7.07s Cromwell

14 AthleticNet, https://www.athletic.net/TrackAndField/meet/334210/results/f/1/100m, last visited February 11, 2020. 15 AthleticNet, https://www.athletic.net/TrackAndField/meet/352707/results/f/1/55m, last visited February 11, 2020.
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3*

12

F Cori Richardson

4*

11

F Chelsea Mitchell

5*

12

F Kate Shaffer

6*

12

F Ayesha Nelson

7*

12

F Maya Mocarski

8

11

F Selina Soule

9

10

F Kisha Francois

7.24s 7.27s 7.27s 7.29s 7.34s 7.37s 7.41s

Windsor Canton Conard Hillhouse Fairfield Ludlowe Glastonbury East Haven

* Qualified for the women’s 55m final.

Table 12: 2019 CIAC State Open Championship Women’s Indoor Track 55m Final Results (February 16, 2019)16

Place Grade Sex Name

1*

11

M T.M.

Time 6.95s

High School Bloomfield

2*

11

M Andraya Yearwood

3*

11

F Chelsea Mitchell

4*

12

F Kate Shaffer

7.01s 7.23s 7.24s

Cromwell Canton Conard

5*

12

F Ayesha Nelson

7.26s Hillhouse

6*

12

F Maya Mocarski

7

12

F Cori Richardson

7.33s 7.39s

Fairfield Ludlowe Windsor

* Qualified for the New England Championship.

92. But for CIAC’s policy, Plaintiff Selina Soule as well as Kisha Francois would

have advanced to the next level of competition in the indoor state championship 55m preliminary

race and competed for a spot at the New England Championship. (Table 11)

93. But for CIAC’s policy, Plaintiff Chelsea Mitchell would have placed first in the

55m at the indoor state championship, been named State Open Champion, received a gold medal

instead of a bronze medal, and received public recognition of her achievements. (Table 12)

16 Id.
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94. But for CIAC’s policy, Kate Shaffer would have won second place in the 55m at the indoor state championship; and seventh-place senior Cori Richardson would have qualified for the New England Championship. (Table 12)
95. But for CIAC’s policy, Chelsea Mitchell would have made her school’s history as the first female athlete from Canton High School indoor ever to be named State Open Champion, and the first ever Canton High School track athlete to be named a State Open Champion.
96. State Open Champions are recognized as All State Athletes, an award listed on college applications, scholarship applications, and college recruiting profiles. State Open Champions are also invited to the All-State Banquet and have their achievements celebrated with a banner in their high school gym.
97. But instead of receiving the accolades and publicity she earned, Chelsea Mitchell was repeatedly referred to in the press as the “third-place competitor.”17
98. Following T.M.’s sweep of the CIAC’s Indoor Class S, State Open, and New England titles in the 55m dash and 300m, this student—genetically male and enjoying the athletic advantages bestowed by male physiology—was named “All-Courant girls indoor track and field athlete of the year” by the Hartford Courant newspaper.18
99. In the Spring 2019 track season, T.M. and Andraya Yearwood continued to displace girls including Plaintiffs from victory positions and opportunities to advance to elite levels of competition.
17 See, e.g., https://www.washingtontimes.com/news/2019/feb/24/terry-miller-andraya-yearwood-transgendersprinter/, last visited February 11, 2020. 18 https://www.courant.com/sports/high-schools/hc-sp-terry-miller-all-courant-20190410-36bj/, last visited February 11, 2020.
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100. For example, in the Class S Women’s Outdoor Track 100m qualifying race, T.M. and Yearwood took second and third place, excluding two girls from the opportunity to advance to the next level of competition. But for CIAC’s policy, Plaintiff Ashley Nicoletti as well as Annabelle Shanks would have advanced to the next level of competition in the outdoor Class S state championship 100m preliminary race and competed for a spot at the State Open Championship:

Table 13: 2019 CIAC Class S Women’s Outdoor Track 100m Preliminary Results (May 30, 2019)19

Place Grade Sex Name

Time High School

1*

11

F Chelsea Mitchell

12.14s Canton

2*

11

M T.M.

12.18s Bloomfield

3*

11

M Andraya Yearwood

12.50s Cromwell

4*

10

F Alisia Munoz

12.73s Kolbe-Cathedral

5*

11

F Brianna Westberry

13.05s Capital Prep

6*

12

F Olivia D'Haiti

13.08s Kolbe-Cathedral

7*

9

F D'Jior Delissir

13.16s Bloomfield

8*

12

F Sheena Wolliston

13.22s Northwest Catholic

9

9

F Ashley Nicoletti

13.27s Immaculate

10

10

F Annabelle Shanks

13.30s Litchfield

* Qualified for the women’s 100m final.

101. In that outdoor Class S state championship, T.M. and Andraya Yearwood placed

first and third respectively in the Women’s 100m race. But for CIAC’s policy, Plaintiff Chelsea

Mitchell would have placed first in the 100m at the Class S outdoor state championship, been

19 AthleticNet, https://www.athletic.net/TrackAndField/meet/365961/results/f/1/100mm, last visited April 9, 2020.
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named State Champion, received a gold medal instead of a silver medal, and received public recognition of her achievements:

Table 14: 2019 CIAC Class S Women’s Outdoor Track 100m Final Results (May 30, 2019)20

Place Grade Sex Name

Time High School

1*

11

M T.M.

11.93s Bloomfield

2*

11

F Chelsea Mitchell

12.02s Canton

3*

11

M Andraya Yearwood

12.28s Cromwell

4*

11

F Brianna Westberry

12.82s Capital Prep

5*

10

F Alisia Munoz

12.86s Kolbe-Cathedral

6

12

F Sheena Wolliston

13.13s Northwest Catholic

7

12

F Olivia D'Haiti

13.14s Kolbe-Cathedral

8

9

F D'Jior Delissir

13.31s Bloomfield

* Qualified for the State Open.

102. Similarly, T.M. easily won the Women’s 200m race at the 2019 State Outdoor

Open. But for CIAC’s policy, Cori Richardson would have won the state championship in this

event, Plaintiff Alanna Smith—as a freshman—would have finished runner-up, and Olivia

D’Haiti would have advanced to the New England Championship:

Table 15: 2019 CIAC State Open Championship Women’s Outdoor Track 200m Final Results (June 3, 2019)21

Place Grade Sex Name

Time High School

1*

11

M T.M.

24.33s Bloomfield

2*

12

F Cori Richardson

24.75s Windsor

3*

9

F Alanna Smith

25.01s Danbury

4*

11

F Chelsea Mitchell

25.24s Canton

20 Id. 21 AthleticNet, https://www.athletic.net/TrackAndField/MeetResults.aspx?Meet=364088&show=all, last visited February 11, 2020.
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5*

12

F Nichele Smith

6*

12

F Bridget Lalonde

7

12

F Olivia D’Haiti

25.38s 25.55s 25.63s

East Hartford RHAM Kolbe-Cathedral

* Qualified for the New England Championship.

103. Considering the nine important state-level competitive events summarized in the

tables above (including seven finals and two preliminary races) together with the parallel boys’

competitions in these same events at these same meets, the result of the CIAC Policy was that

girls received only one first place recognition out of 14 state championship events (Caroline

O’Neil in the 200m State Open Women’s race on June 5, 2017), while students born with male

bodies captured 13 championships.

104. Students born male, and gifted with male bodies, captured 22 out of 28 first and

second place awards in those seven state-level championship events.

105. And from these competitions, students born male were awarded 68 opportunities

to participate in a higher-level state competition, while girls were awarded only 40 such

opportunities—little more than half as many as went to boys.

106. In short, in these events girls received radically fewer opportunities to participate

in elite post-season competition than did those born male.

107. Nor are these isolated examples. The operation of the CIAC Policy has now

deprived many female athletes in Connecticut of opportunities to achieve public recognition, a

sense of reward for hard work, opportunities to participate in higher level competition, and the

visibility necessary to attract the attention of college recruiters and resulting scholarships. The

impact summary below identifies over 50 separate times in competitions since 2017 that specific,

identifiable girls have been denied the recognition of being named state-level first-place

champions, and/or have been denied the opportunity to advance to and participate in higher-level

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competition, in CIAC-sponsored events as a result of the unfair participation of T.M. and Andraya Yearwood in girls’ track competitions pursuant to the CIAC Policy.
108. In sum, the real-world result of the CIAC Policy is that in Connecticut interscholastic track competitions, while highly competitive girls are experiencing the no doubt character-building “agony of defeat,” they are systematically being deprived of a fair and equal opportunity to experience the “thrill of victory.” A transgender athlete advocate recently wrote in an op-ed that this should be accepted because part of competitive sports is “learning to lose.” A policy such as the CIAC Policy that ensures that girls get extra lessons in losing, however, cannot be reconciled with Title IX.

Table 16: CIAC’s Policy Impact Summary

2019 Outdoor Track Season

Athlete

School

Meet

Chelsea Mitchell Ashley Nicoletti Annabelle Shanks Olivia D’Haiti
Sheena Wolliston
Chelsea Mitchell Brianna Westberry Shelby Dejana Alisia Munoz Carly Swierbut Cori Richardson Olivia D’Haiti

Canton Immaculate Litchfield KolbeCathedral
Northwest Catholic
Canton Capital Prep
Wilton KolbeCathedral Newtown Windsor KolbeCathedral

Class S Class S Class S Class S
Class S
Class S Class S Open Open Open Open Open

Event
100m 100m 100m 100m

Denied State Championship
X

100m

200m

X

200m

100m 100m

100m

200m

X

200m

Denied Participation
X X X
X
X X X X
X

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2019 Indoor Track Season

Chelsea Mitchell Canton

Class S 55m

X

Sheena Wolliston Northwest

Class S 55m

X

Catholic

Audrey Strmiska Griswold

Class S 55m

X

Jillian Mars

Bloomfield

Class S 300m

X

Chelsea Mitchell Canton

Open

55m

X

Cori Richardson

Windsor

Open

55m

X

Selina Soule

Glastonbury Open

55m

X

Jillian Mars

Bloomfield

Open

300m

X

Shante Brown

Bloomfield

Open

300m

X

2018 Outdoor Track Season

Nikki Xiarhos

Berlin

Class M 100m

X

Kate Hall

Stonington

Class M 100m

X

Magnalen Camara Amisted

Class M 100m

X

Noelle Konior

Berlin

Class M 100m

X

Nikki Xiarhos

Berlin

Class M 200m

X

Kate Hall

Stonington

Class M 200m

X

Nyia White

Hillhouse

Class M 200m

X

Addie Hester

Northwestern Class M 400m

X

Jada Boyd

Hillhouse

Class M 400m

X

Bridget Lalonde

RHAM

Open

100m

X

Tia Marie Brown Windsor

Open

100m

X

Ayesha Nelson

Hillhouse

Open

100m

X

KC Grady

Darien

Open

100m

X

Nikki Xiarhos

Berlin

Open

100m

X

Bridget Lalonde

RHAM

Open

200m

X

Jillian Mars

Bloomfield

Open

200m

X

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Dominique

Immaculate

Open

400m

X

Valentine

2018 Indoor Track Season

Patricia Jurkowski Seymour

Class S 55m

X

Ahyvon Evans

Grasso Tech Class S 55m

X

Chelsea Mitchell Canton

Class S 300m

X

Haley Bothwell

Sacred Heart Class M 55m

X

Patricia Jurkowski Seymour

Open

55m

X

Bridget Lalonde

RHAM

Open

55m

X

Camille McHenry Windsor

Open

300m

X

2017 Outdoor Track Season

Kate Hall

Stonington

Class M 100m

X

Jon’yea McCooty Northwest

Class M 100m

X

Catholic

Carly Gable

Northwestern Class M 100m

X

Erika Michie

Woodland

Class M 200m

X

Raianna Grant

WCA

Class M 200m

X

Erica Marriott

North Haven Open

100m

X

109. These charts are examples, and do not include over 40 more missed championships, recognitions, and participation opportunities for girls in Connecticut who did not advance to or receive runner-up recognition in statewide competitions including major invitational meets, as well as girls who did not win or receive runner-up recognition in conference championships.
110. The harm inflicted on girls by the CIAC policy, however, goes far beyond specific lost victories and lost opportunities to participate in elite meets, and far beyond the
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specific girls who have been deprived of that recognition and those opportunities. Instead, the harm extends at least to all girls who participate in track and field events under the CIAC Policy, and indeed to girls—including young girls—who may now or someday aspire to become track and field athletes.
111. The cumulative effect of the CIAC Policy is that all girls in Connecticut do not receive equal athletic opportunities. Whether or not a girl is the one who loses out to a biological male in a particular race, the quality of competitive opportunities provided to all girls does not equally reflect the quality of competitive opportunities provided to boys, because—in contrast to boys—girls are forced to face a level of competition that does not equally reflect and accommodate girls’ different physiological characteristics and abilities.
112. Compared to boys, girls competing subject to the CIAC policy lose not only victories and post-season slots, they lose even an equal hope of victory, success and recognition. They do not have an equal chance to be champions; they cannot equally dream that if they train hard, they have at least the potential to stand on the victory podium.
113. Instead, when an athlete who is genetically and physiologically male is competing in the girls’ division, Plaintiffs and other girls are forced to step to the starting line thinking, “I can’t win.” “I’m just a girl.”
114. The Plaintiffs’ personal and attainable goals of victory are being taken from them season after season, and meet after meet.
115. Plaintiff Alanna Smith knows before she gets to the track that she has little hope of winning the top spot against a biological male—she and her fellow female competitors are simply competing for second or third place.
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116. The Plaintiffs are demoralized, knowing that their efforts to shave mere fractions of a second off of their race times in the hopes of experiencing the thrill of victory could all be for naught, and lost to mid-level male athletes.
117. For Plaintiff Chelsea Mitchell and many other female athletes, they also feel stress, anxiety, intimidation, and emotional and psychological distress from being forced to compete against males with inherent physiological advantages in the girls’ category. While important races always involve some element of stress, Chelsea has felt physically sick before races in which she knew she would have to race against a biological male, while Plaintiff Selina Soule suffered depression after being excluded from participation in State finals because top places in the girls’ rankings were occupied by biological males.
118. And they are told to shut up about it. As another female Connecticut track athlete who was too afraid to let her name be used told a reporter:
“There’s really nothing else you can do except get super frustrated and roll your eyes, because it’s really hard to even come out and talk in public, just because . . . just immediately you’ll be shut down.”22 119. Chelsea Mitchell was instructed by officials of Canton High School to respond “no comment” if asked about running against male athletes.
C. The CIAC Policy Creates Additional and Unequal Risks of Injury for Girls. 120. The CIAC Policy also applies in full, and with no additional limitations or
safeguards, to sports that include bodily contact between players, or contact between players and balls or other equipment, such as soccer, basketball, and lacrosse.
22 Quoted in Kelsey Bolar, 8th Place: A High School Girl’s Life After Transgender Students Join Her Sport, The Daily Signal (May 6, 2019), https://www.dailysignal.com/2019/05/06/8th-place-high-school-girls-speak-out-ongetting-beat-by-biological-boys/, last visited February 11, 2020.
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121. In these sports, the basic facts of physiology after puberty reviewed above, along with the on-average greater height, weight, and body mass index of males as compared to females, mean that on average, collision with males, or with balls hit or thrown at higher velocity by generally stronger males, create a higher risk of injury for girls and women than they would experience playing against only females.
122. Studies show that girls and women already suffer a higher rate of concussions than do boys and men when playing the same sports, and that girls suffer longer-lasting negative effects from concussions than do boys. On information and belief, all Defendants are aware of this well-established medical science. On information and belief, already, significant numbers of girls are excluded from participating in athletics in Connecticut each season because they suffer or have suffered a concussion. By exposing girls to yet greater risk of concussion and other injury by permitting males to compete in girls’ sports that involve body-to-body or ball-againstbody collision, the CIAC Policy fails to appropriately accommodate the physiological capabilities and abilities of girls, and fails to provide equal athletic opportunities for girls.
123. On information and belief, CIAC has in fact permitted males to compete in CIACsponsored competition in girls’ sports in addition to track and field. According to a CIAC executive, the Policy “has been applied to teams on several occasions.”
D. Defendants Are on Notice of Their Violations of Title IX and Have Refused to Take Corrective Action.
124. The CIAC and its member schools, including Defendant Schools, have been informed of the ways in which the Policy violates Title IX, and have been informed in detail about the actual impact that the Policy has had and is having on the quantity and quality of competitive opportunities for girls since well before June 18, 2019, on which date Plaintiffs filed
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a complaint concerning the Policy with the U.S. Department of Education Office for Civil Rights (OCR), and publicly posted that complaint online (the “OCR Complaint”).
125. The OCR Complaint disclosed all facts concerning the impact of the Policy on female athletes in Connecticut that are gathered in this Complaint through the conclusion of the Spring 2019 Outdoor Season.
126. Since receiving the OCR Complaint, Defendants have taken no steps to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
127. In fact, long before filing the OCR Complaint, parents of Plaintiffs had repeatedly warned senior officials of CIAC and of Defendant Schools that the Policy was denying girls equal competitive opportunities and public recognition in track and field. For example, on February 21, 2018, Christina Mitchell, mother of Plaintiff Chelsea Mitchell, sent a letter to the Executive Director of CIAC explaining in detail how the Policy deprives girls of fair and equal opportunities for competition.
128. After that time, Mrs. Mitchell and Bianca Stanescu, mother of Plaintiff Selina Soule, met and requested to meet repeatedly with responsible officials of CIAC and Defendant Schools to discuss their concerns about unfairness to girls, and to request that the Policy be changed.
129. In response to these warnings and complaints from parents concerning the effect of the Policy on girls, Defendants took no steps whatsoever to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been
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recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
130. Instead, when in March 2019—a year after her first letter—Mrs. Mitchell sent a third detailed letter on the same topic to the Mr. Glenn Lungarini, then Executive Director of CIAC, Mr. Lungarini informed her that CIAC would no longer accept any communications from her, effectively retaliating against her for her prior complaints of discrimination against girls by imposing a gag order and denying her right to complain of sex-based discrimination against her daughter and other girls in Connecticut schools.
131. On information and belief, by no later than on or about October 4, 2019, the OCR informed all Defendants that OCR found the allegations of the OCR Complaint sufficiently serious that OCR had initiated a formal investigation of those allegations against all Defendants.
132. Since receiving notice that the OCR had initiated a formal investigation of Defendants’ alleged violations of Title IX, Defendants have taken no steps whatsoever to change the Policy, to correct official records and publicity materials to give accurate credit to girls who would have been recognized as victors but for Defendants’ violations of Title IX, or to cease and correct their violations of Title IX in any way whatsoever.
V. PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF 133. All four Plaintiffs intend to compete in the Spring 2020 track and field season. While that season has been seriously disrupted by school closures resulting from the COVID-19 virus, the CIAC has recently announced that “CIAC will explore every possibility for providing student-athletes with a spring [2020] sports experience,” and “will make every effort to provide student-athletes experiences that bring closure to their high school sports careers,” “includ[ing] consideration of activities beyond graduation and into July.”
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134. If genetically and physiologically male athletes are permitted to compete in girls’ track and field competitions governed by the CIAC Policy in the Spring 2020 season, then Plaintiffs will likely lose victory, recognition, and advancement opportunities in the spring season.
135. Plaintiff Chelsea Mitchell intends to compete in the CIAC Outdoor Class S Championships currently scheduled for June 3, 2020, in the 100m and 200m events. CIAC has established 2020 Class S qualifying standards at 13.74s for the 100m, and 28.94s for the 200m. Based on Chelsea’s performance in the 2019 Outdoor track season, in which she achieved a time of 11.67s in the 100m and 24.79s in the 200m, Chelsea expects to qualify for the CIAC 2020 Outdoor Class S Championship.
136. Chelsea has a chance of being the fastest girl in the CIAC Class S Championship in the 100m and 200m for the 2020 Spring season.
137. Plaintiff Ashley Nicoletti also intends to compete in the CIAC Outdoor Class S Track Championship in the 100m and 200m. Based on Ashley’s performance in the 2019 Outdoor track season, in which she achieved a time of 13.01s in the 100m and 26.78s in the 200m, Ashley expects to qualify for any Outdoor 2020 Class S Championship.
138. But T.M. is also expected to meet the 2020 Outdoor Class S Championship qualifying standards for the girls’ 100m and 200m races. In the 2019 Outdoor season, T.M. achieved an 11.64s in the 100m, and 24.18s in the 200m. In fact, T.M. took first place in the girls’ 100m and 200m in the 2019 CIAC Outdoor Class S Championship.
139. T.M. has repeatedly achieved times faster than the elite girls’ times in Connecticut in the 100m and 200m. T.M. has never lost a girls’ CIAC outdoor 100m or 200m final.
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140. If T.M. is permitted to compete in the girls’ 100m and 200m events, it is likely that T.M. will deprive Chelsea and Ashley of a victory position that each girl has earned in the CIAC Class S Championship.
141. Andraya Yearwood is also expected to meet the 2020 Outdoor Class S Championship qualifying standards. During the 2019 Outdoor season, Andraya achieved 12.20s in the 100m and 25.94s in the 200m.
142. If Andraya is permitted to compete in the girls’ 100m and 200m event, it is likely that Andraya will deprive Chelsea and Ashley of a victory position that each girl has earned in the Class S Championship.
143. Plaintiffs Selina Soule and Alanna Smith intend to compete in the 2020 Outdoor CIAC Class LL Championship, and based on their 2019 Outdoor track performance, both girls expect to meet the event qualifying standards: 13.54s in the 100m, and 28.24s in the 200m. Selina achieved a 12.46s in the 100m and 26.30 in the 200m during the 2019 Outdoor season. Alanna achieved 12.04s in the 100m and 24.98s in the 200m during the 2019 Outdoor season.
144. The top five finishers in each class championship will advance to the CIAC State Open Championships currently scheduled for June 8, 2020.
145. Chelsea has a chance of being the fastest girl in the State Open in the 100m and 200m for the 2020 Outdoor season and securing a spot to advance to New England Regional Championships.
146. Selina, Alanna, and Ashley have a chance of competing for a top spot in the State Open in the 100m and 200m for the 2020 Outdoor track season and competing for a top spot to advance to New England Regional Championships.
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147. But if T.M. and Andraya Yearwood are permitted to compete in the girl’s 100m or 200m event, it is likely that one or both of these athletes with male physiology will deprive each of the Plaintiffs of a victory position she has earned at the State Open Championship.
148. As Chelsea and Selina are seniors, the Spring 2020 track season is their final opportunity to compete in high school track and field events, to improve their scores, to win championships, to receive public recognition of their achievements, and to experience the thrill of victory.
149. Plaintiff Alanna Smith is a sophomore and expects to compete in CIAC track and field competitions next year and throughout her high school years. Specifically, Alanna plans to compete in track and field events in both the winter and spring seasons of 2021. As noted in paragraph 102 above, Alanna has already been pushed down from an earned second place victory in a 2019 State Championship when T.M. took first place.
150. Plaintiff Ashley Nicoletti is a sophomore and expects to compete in CIAC track and field competitions next year and throughout her high school years. Specifically, Ashley plans to compete in track and field events in both the winter and spring seasons of 2021. As noted in paragraph 100 above, Ashley has already been excluded from participation in elite competition when participation by two genetically and physiologically male athletes denied Ashley the opportunity to advance to compete for a spot at the State Open Championships.
151. Plaintiffs do not know which or how many biological males will wish to compete in CIAC girls’ track and field events in the Spring 2020 season, or the coming 2020-2021 academic year. In fact, the CIAC Policy denies them the ability to know that until the season starts, as illustrated by the fact that T.M. competed in the boys’ events in the Winter 2018 indoor
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season and just weeks later started competing in the girl’s events in the Spring 2018 outdoor season, with no prior notice to other athletes or their parents.
152. Each track season lasts only a few weeks. If Alanna and Ashley wait until the start of the next season to seek injunctive relief, the season will be over before there can be any realistic hope of legal redress.
153. Because of the multiple different negative impacts on girls detailed in this Complaint, Plaintiffs are entitled to injunctive relief prohibiting all Defendants from permitting boys to participate in girls’ track and field competitions.
154. Failure to grant the requested relief will cause irreparable harm to Plaintiffs by continuing to deny them the experience of fair competition that reflects the athletic capabilities of female athletes, as well as the experience of victory and the recognition that can come from victory. Each meet, once over, cannot be redone. Each opportunity lost for participation in an elite meet cannot be recovered. There is no adequate remedy at law for this harm.
155. The continuing, irreparable harm caused by Defendants’ failure to provide equal competitive opportunities for girls in track and field far outweighs any cognizable harm that granting the injunction might cause Defendants, because the requested injunctive relief is already mandated by federal law.
156. CIAC publicly posts results of past State Championship meets on their website going back at least three years, and on information and belief maintains those records in publicly accessible archives in perpetuity. In addition, schools including at least Defendant School Canton publicly post lists of championships won by their students, going back many years. As a result of competition by male athletes in girls’ events in violation of Title IX, female athletes including
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Plaintiffs have been denied accurate public recognition of their athletic achievements and victories in these postings.
157. Plaintiffs are entitled to injunctive relief requiring all Defendants to correct all league or school records, public or private, to accurately reflect the achievements of these girls only in competition against other girls.
158. Failure to grant this requested relief will cause irreparable harm to Plaintiffs by continuing to deprive them of public recognition for their hard-earned athletic accomplishments. There is no adequate remedy at law for this harm.
159. The continuing, irreparable harm caused by Defendants’ posting of inaccurate records resulting from the unlawful CIAC Policy outweighs any cognizable harm that granting the harm might cause Defendants, because the requested injunctive relief is already mandated by federal law.
COUNT I: TITLE IX Sex Discrimination by Failing to Provide Effective Accommodation for the
Interests and Abilities of Girls 160. Plaintiffs reallege and incorporate by reference all of the foregoing paragraphs of this Complaint. 161. All Defendants are subject to the obligations of Title IX. 162. Defendants have chosen to provide athletic opportunities in track and field separated by sex. 163. As a result, Defendants have an obligation to provide competitive opportunities for females that accommodate the physical abilities of girls in a manner that ensures that female athletes face competitive opportunities “which equally reflect their abilities” and which provide
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“equal opportunity in . . . levels of competition” as compared to the competitive opportunities enjoyed by boys.
164. As a result of profound physiological differences between the sexes after puberty, the athletic abilities of girls relevant to track and field competitions are not equal to those of comparably fit and trained boys.
165. As a result of this inescapable difference, by permitting students who were born male and possess the athletic advantages bestowed by male bodies to compete in girls’ track and field events, all Defendants have violated their duty to provide competitive opportunities for female athletes that accommodate their abilities and provide equal opportunities in levels of competition, as illustrated by the fact that in events where students born male have actually been permitted in elite post-season competitions, students born male have been awarded far more first place victories and recognitions than girls, and far more opportunities to advance to state finals.
166. All Plaintiffs are harmed by Defendants' failure to provide competitive opportunities that fairly and effectively accommodate the athletic abilities of girls.
167. Such harm includes loss of the experience of fair competition; loss of victories and the public recognition associated with victories; loss of opportunities to advance to higherlevel competitions; loss of visibility to college recruiters; emotional distress, pain, anxiety, and other damages to be proven at trial.
168. Accordingly, Plaintiffs are entitled to the relief requested herein.
COUNT II: Title IX Sex Discrimination by Failing to Provide Equal Treatment, Benefits and
Opportunities for Girls 169. Plaintiffs reallege and incorporate by reference all of the foregoing paragraphs of this Complaint.
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170. All Defendants are subject to the obligations of Title IX. 171. Defendants have chosen to provide athletic opportunities in track and field separated by sex. 172. As a result, all Defendants have an obligation to ensure that female athletes receive equivalent treatment, benefits and opportunities in athletic competition as compared to boys. 173. Equivalent treatment and opportunities require equal opportunities to engage in post-season competition, and more broadly the right to be free of any policies which are “discriminatory in language or effect” or have the effect of denying “equality of athletic opportunity.” 174. As detailed herein, the CIAC Policy deprives female athletes, including Plaintiffs Chelsea Mitchell, Selina Soule, Alanna Smith, and Ashley Nicoletti, of equal opportunities to engage in post-season competition, is discriminatory in effect, and denies girls equality in athletic opportunities, including equal opportunities to achieve and be recognized for victory. 175. By providing track and field competitive opportunities for girls subject to the CIAC policy that permits males to participate in girls’ events and be recognized as winners of girls’ events, all Defendants have violated their obligation under Title IX to provide equal treatment, benefits and opportunities in athletic competition to girls. 176. All Plaintiffs are harmed by Defendants' failure to provide competitive opportunities that fairly and effectively accommodate the athletic abilities of female athletes. Such harm includes loss of the experience of fair competition; loss of victories and the public recognition associated with victories; loss of opportunities to advance to higher-level
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competitions; loss of visibility to college recruiters; emotional distress, pain, anxiety, and other damages to be proven at trial.
177. Accordingly, Plaintiffs are entitled to the relief requested herein. PRAYER FOR RELIEF
Plaintiffs respectfully request that this Court enter judgment against Defendants and grant Plaintiffs the following relief:
(A) A declaration that Defendants have violated Title IX by failing to provide competitive opportunities that effectively accommodate the abilities of girls;
(B) A declaration that Defendants have violated Title IX by failing to provide equal treatment, benefits, and opportunities for girls in athletic competition;
(C) An injunction prohibiting all Defendants, in interscholastic athletic competitions sponsored, organized, or participated in by the Defendants or any of them, from permitting males from participating in events that are designated for girls, women, or females;
(D) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove male athletes from any record or recognition purporting to record times, victories, or qualifications for elite competitions designated for girls or women, and conversely to correctly give credit and/or titles to female athletes who would have received such credit and/or titles but for the participation of athletes born male and with male bodies in such competitions;
(E) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove times achieved by athletes born male and with male bodies from any records purporting to record times achieved by girls or women;
(F) An award of nominal and compensatory damages and other monetary relief as permitted by law;
(G) An award of Plaintiffs’ reasonable attorneys’ fees and expenses, as authorized by 42 U.S.C. § 1988;
(H) Such other and further relief as the Court deems appropriate.
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Respectfully submitted this 17th day of April, 2020.
By: s/ Roger G. Brooks
Roger G. Brooks CT Fed. Bar No. PHV10498 Jeffrey A. Shafer CT Fed. Bar No. PHV10495 Alliance Defending Freedom 15100 N. 90th Street Scottsdale, Arizona 85260 Telephone: (480) 444-0020 Fax: (480) 444-0028 Email: rbrooks@ADFlegal.org Email: jshafer@ADFlegal.org
Kristen K. Waggoner CT Fed. Bar No. PHV10500 Christiana M. Holcomb CT Fed. Bar No. PHV10493 Alliance Defending Freedom 440 First St. NW, Suite 600 Washington, D.C. 20001 Telephone: (202) 393-8690 Fax: (202) 347-3622 Email: kwaggoner@ADFlegal.org Email: cholcomb@ADFlegal.org
Howard M. Wood III CT Bar No. 68780, CT Fed. Bar No. 08758 James H. Howard CT Bar No 309198, CT Fed. Bar No 07418 Fiorentino, Howard & Petrone, P.C. 773 Main Street Manchester, CT 06040 Telephone: (860) 643-1136 Fax: (860) 643-5773 Email: howard.wood@pfwlaw.com Email: james.howard@pfwlaw.com
Attorneys for Plaintiffs
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VERIFICATION OF AMENDED COMPLAINT

I declare under penalty ofperjury, pursuant to 28 U.S.C. § 1746, that I have read the foregoing Amended Verified Complaint, and the factual allegations thereof, and that to the best ofmy knowledge the facts alleged therein are true and correct. Due to the COVID-19 pandemic, I am
unable to have this verification notarized; however, I will do so as soon as conditions safely
permit.

4Av1 , Executed this~f~day of

·J J.OJ,/).

Christina Mitchell, Plaintiff

48

Case 3:20-cv-00201-RNC Document 89 Filed 04/17/20 Page 49 of 49 CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2020, a copy of the foregoing Amended Complaint was filed electronically with the Clerk of Court. Service on all parties will be accomplished by operation of the court’s electronic filing system.
s/ Roger G. Brooks Attorney for Plaintiffs
49

 
 Document Number:

92 (No document attached)

*Docket Text:* ORDER granting [36] Motion to Intervene; finding as moot [87] Motion for Order. The only seriously contested issue with regard to the proposed intervenors (PIs) motion to intervene as of right under Fed. R. Civ. P. 24(a) is whether they have overcome the presumption that their interests are adequately represented by the existing defendants. I conclude that the presumption has been overcome. Inadequacy of representation may be established when a would-be defendant seeks to raise a defense that will not be raised otherwise. See Meriwether v. Trustees of Shawnee State Univ., No. 1:18-cv-753, 2019 WL 2052110, *12 (S.D. Ohio May 9, 2010) (in suit by professor challenging colleges antidiscrimination policy, intervention granted to transgender student and LBTG student advocacy group because they intended to assert arguments based on the Equal Protection Clause, Title IX and the ADA that the college was required to treat transgender students in accordance with their gender identity, an argument the college had not made in its motion to dismiss and was unlikely to make, thus overcoming the presumption of adequacy of representation). Here, the PIs seek to raise a defense that the relief sought by the complaint would constitute impermissible discrimination against them in violation of Title IX and the Equal Protection Clause. Based on the defendants written submissions and the comments of defense counsel during the recent telephone conference, none of the defendants adequately represents the interests of the PIs in defending the action on this basis. CIAC intends to defend on the ground that it is not subject to suit under

Title IX, that state law controls, and that the definition of sex in Title IX is ambiguous. Bloomfield and Cromwell intend to defend on the ground that they owe no Title IX obligations to students, like the plaintiffs, who do not attend their schools. The remaining defendants, Danbury, Glastonbury and Canton, have disclaimed any interest in advocating for the rights of students, like the PIs, who do not attend their schools. Bloomfield and Cromwell may argue that the relief sought would violate Title IX but they will not argue that it would violate the Equal Protection Clause. Nor will any of the other defendants. Accordingly, I find that the interests of the PIs are not so similar to those of the existing defendants that adequate representation of their interests is assured. See id.; cf. Christa McAuliffe Intermediate School PTO v. de Blasio, No. 18 Civ. 11657(ER), 2020 WL 1432213, *5 (S.D.N.Y. March 24, 2020) (in action by Asian-American groups challenging changes to program governing admission to Citys selective high schools, intervention as of right granted to students seeking to defend changes based on the programs history of discrimination, a defense the existing defendants would not make). Permissive intervention is proper in any event because the PIs have a strong personal interest in the subject matter of the case and they are in a position to make a valuable contribution to the Courts understanding of the case. See New York v. U.S. Dept. of Health and Human Services, 2019 WL 3531960, *4 (S.D.N.Y. Aug. 2, 2019) (in action by states challenging HHS rule allowing medical personnel to abstain from providing services due to religious beliefs, motion for intervention as of right by medical personnel seeking to defend the rule denied but permissive intervention granted); United States v. New York City Housing Authority, 326

F.R.D. 411, 417-18 (S.D.N.Y. 2018) (in action against to redress health and safety violations by Housing Authority, motion to intervene as of right by tenant organizations denied but permissive intervention granted). Moreover, they have expressed a willingness to accept conditions on their participation that will avoid unduly burdening the existing the parties or the Court. Accordingly, the motion is hereby granted. So ordered. Signed by Judge Robert N. Chatigny on 4/22/2020. (Gazzola, Mario)

 
 Case 3:20-cv-00201-RNC Document 36 Filed 02/21/20 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

SELINA SOULE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CONNECTICUT ASSOCIATION OF

)

SCHOOLS, INC. et al,

)

)

Defendants,

)

)

and

)

)

ANDRAYA YEARWOOD and THANIA

)

EDWARDS on behalf of her daughter, T.M., )

)

Proposed Intervenors. )

)

No. 3:20-cv-00201-RNC February 21, 2020

MOTION OF ANDRAYA YEARWOOD AND THANIA EDWARDS, ON BEHALF OF HER DAUGHTER, T.M., TO INTERVENE AS DEFENDANTS

Andraya Yearwood (“Andraya”) and Thania Edwards on behalf of her daughter T.M.

(“Terry”) move to intervene as defendants as of right pursuant to Fed. R. Civ. P. 24(a)(2) or,

alternatively, for permissive intervention under Rule 24(b)(1). The basis for the Proposed

Intervenor-Defendants’ motion to intervene is set forth below as well as in the accompanying

declarations.

The central goal of Plaintiffs’ lawsuit is to prevent Andraya, Terry, and others girls who

are transgender from participating in Connecticut athletics. Throughout their Complaint and

Motion for Preliminary Injunction, Plaintiffs repeatedly refer to Andraya and Terry by name and

single out Andraya and Terry as the source of Plaintiffs’ alleged irreparable injury. See, e.g.,

Compl. ¶¶ 14-15, 76-77, 80-104, 130-37, 142, 145-46. Their Complaint is replete with factual

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inaccuracies about Andraya and Terry personally, as well as about issues and policies that directly impact their lives. Andraya and Terry should not be forced to watch on the sidelines while Plaintiffs attempt to bar them from participating in the 2020 spring track and field season and expunge all record of their past accomplishments. The Court should therefore grant their motion to intervene either as of right, or, in the alternative, permissively.
BACKGROUND Andraya and Terry
Andraya and Terry are track athletes in Connecticut who have spent the past four years participating in Track and Field in accordance with Connecticut law and state policy. Yearwood Decl. [Exhibit 1] ¶ 6; T.M. Decl. [Exhibit 2] ¶¶ 6, 10. Both Terry and Andraya are girls who are transgender, which means that they were assigned a male sex at birth but are young women. Yearwood Decl. ¶ 2; T.M. Decl. ¶ 3. Like non-transgender girls, Terry and Andraya have a female gender identity and live their lives as girls. Yearwood Decl. ¶¶ 2-3; T.M. Decl. ¶¶ 3-5. Andraya is an eighteen-year old student in her senior year at Cromwell High School. Yearwood Decl. ¶ 1. Terry is a seventeen-year old student in her senior year at Bloomfield High School. T.M. Decl. ¶ 1.
From the time she was a child, Andraya has known that she is a girl. Yearwood Decl. ¶ 2. In the summer before eighth grade, Andraya told her parents that she is transgender and started to receive social and medical support for her transition. Id. ¶ 2. By the time Andraya started high school, she was known to her family and peers as a girl and participated in all aspects of school consistent with her female gender. Id. She has legally changed her name to “Andraya” and has been undergoing hormone therapy for several years. Id. ¶ 3. As a result of her medical transition, Andraya’s circulating hormones are comparable to the hormone levels of non-transgender girls.
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Id. In her everyday life and on her track team, Andraya is accepted as a girl by her family, her friends, her teammates, and her coaches. Id. ¶¶ 2, 6.
Terry also knew from a young age that she is a girl. T.M. Decl. ¶ 3. She recalls as far back as fifth grade being aware of her female gender but not yet having the language or support to understand what she needed in order to live authentically. Id. After years of repressing her identity, Terry came out as transgender in tenth grade and began to live all aspects of her life as a girl. Id. ¶ 4. She has since updated her Connecticut birth certificate to accurately reflect her sex as female and is undergoing hormone therapy. Id. ¶¶ 4-5. As a result of her hormone treatment, Terry has circulating hormones at levels typical of non-transgender girls and, like Andraya, is accepted as a girl by her family, her friends, her teammates, and her coaches. Id. ¶¶ 4, 11-12.
Andraya and Terry love to run, and they both participate in Indoor and Outdoor Track and Field on their respective girls’ teams. Yearwood Decl. ¶¶ 4-7; T.M. Decl. ¶¶ 6-8. They participate in track for the same reasons as their non-transgender peers: being a part of a team creates lasting social and emotional relationships; through the training and competition they are able to invest physical and emotional energy and release stress and anxiety; and the experience gives them a place to be free to be themselves and thrive. Yearwood Decl. ¶¶ 4-7; T.M. Decl. ¶¶ 6-8. Like their teammates and other athletes in Connecticut and beyond, they value participation and not an expectation of winning. Yearwood Decl. ¶¶ 4, 11; T.M. Decl. ¶¶ 6, 14. During the season they each train multiple hours per day, five days per week, and push themselves and their teammates to improve. Yearwood Decl. ¶ 7; T.M. Decl. ¶ 7. “I am lucky to live in a state that protects my rights and to have a family that supports me,” Andraya explained last year. “This is
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what keeps me going. Every day I train hard—I work hard to succeed on the track, to support my teammates, and to make my community proud.”1
Andraya and Terry have both excelled in track and field but, contrary to the allegations by Plaintiffs, their successes have been a result of hard work and are well within the range of high school track times for non-transgender girls. Indeed, some of the Plaintiffs in this case have placed ahead of one or both Andraya and Terry in the 55 meter, the 100 meter and the 300 meter events. Yearwood Decl. ¶ 11; T.M. Decl. ¶ 14. After the Complaint was filed, Plaintiff Chelsea Mitchell placed first in the 55 meter race at the Class S State Open in front of both Terry and Andraya. Yearwood Decl. ¶ 11; T.M. Decl. ¶ 14. But see Compl. ¶ 67 (asserting that the message sent to non-transgender girls under CIAC’s policy is “Give up. You can’t win.”). CIAC’s policy
Under rules established by the Connecticut Interscholastic Athletic Conference (“CIAC”), which serves as the “sole governing body for inter-scholastic athletic activities in Connecticut,” Andraya, Terry, and other girls who are transgender participate on girls’ sports teams, and boys who are transgender participate on boys’ sports teams.2 The current CIAC policy, which has been in effect since 2013, does not, as Plaintiffs allege, allow students to play on girls’ teams based on whether “they claim” to have a female gender identity. Compl. ¶ 2. The governing by-laws of the CIAC dictate student participation based on “the gender identification of that student in current school records and daily life activities in the school and community.”
1 Dan Brechlin, Connecticut high school transgender athletes ‘no longer want to remain silent’ following Title IX complaint, Hartford Courant (June 20, 2019), https://www.courant.com/sports/high-schools/hc-sp-transgender-policy-runners-respond20190619-20190620-5x2c7s2f5jb6dnw2dwpftiw6ru-story.html. 2 Connecticut Interscholastic Athletic Conference, “About CIAC”, http://ciacsports.com/site/?page_id=13.
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CIAC, 2019-2020 Handbook: CIAC By-Law, Article IX, Section B at 55 (2019-20). The student’s school must verify that the “expression of the student’s gender identity is bona fide and not for the purpose of gaining an unfair advantage in competitive athletics.” Id. The policy restricts participation to the athletic classification of the student’s lived and consistently expressed gender identity and bars participation in athletics of both genders. Id.
The CIAC’s policy is not unusual. Across the country, the overwhelming majority of high school athletic associations have policies allowing boys and girls who are transgender to play on the same teams as other boys and girls. Athletic associations in eighteen states have policies that—like the CIAC’s—allow transgender students to participate without requiring students to establish any proof of medical transition. In an additional eighteen states, the athletic associations allow transgender students to participate without hormone therapy or other medical transition on a case-by-case basis. Other states allow transgender students to participate after beginning hormone therapy. See CIAC, Reference Guide for Transgender Policy, https://www.casciac.org/pdfs/Principal_Transgender_Discussion_Quick_Reference_Guide.pdf. Based on the athletic policies that exist in almost every state, Terry and Andraya would be eligible to participate in the girls’ category either based on their female gender identity, their updated birth certificate, and/or their hormone levels.
Transgender men and women also continue to participate in competitive athletics at every stage of their careers, and no post-secondary or elite athletic body regulates competition based on chromosomes, the relief requested by Plaintiffs. Compl. Prayer for Relief (C). The National College Athletic Association (NCAA) and the International Olympic Committee allow women
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who are transgender to compete on women’s teams after a period of undergoing hormone therapy.3 Plaintiffs’ allegations
In their Complaint and Motion for Preliminary Injunction, Plaintiffs make a series of misleading and inaccurate assertions about Terry and Andraya, the CIAC policy, and Plaintiffs’ alleged injuries, which Terry and Andraya strongly dispute.
Plaintiffs misleadingly allege that allege that CIAC changed its policy “at some time before 2017.” Compl. ¶ 70. In fact, CIAC adopted its policy four years earlier, in 2013. See CIAC, CIAC Statement on Transgender Policy Change (Feb. 20, 2020), http://ciacsports.com/site/?p=14124. For seven years, transgender athletes in Connecticut have been participating in interscholastic athletics consistent with their gender identity. During those seven years—in which tens of thousands of student athletes have competed on single sex teams—Plaintiffs have not identified any support for their claims that “the problem of [girls and women who are transgender] taking opportunities from [non-transgender girls and women] has grown very rapidly,” Compl. ¶ 61, that “increasing numbers of [girls who are transgender] are in fact competing in girls’ and women’s events each year,” id. ¶ 62, or that non-transgender girls “will simply vanish from the victory podium and national rankings,” id. ¶ 63.
3 See NCAA Office of Inclusion, NCAA Inclusion of Transgender Student-Athletes (August 2011) at 13 https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (permitting men who are transgender to participate on men’s teams with no medical intervention and women who are transgender to participate on women’s teams after one year of hormone therapy); International Olympic Committee, IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism (November 2015), https://stillmed.olympic.org/Documents/Commissions_PDFfiles /Medical_commission/201511_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf (permitting men who are transgender to compete in the men’s category with no medical intervention and women who are transgender to compete in the women’s category upon proof of suppressed testosterone for a period of 12 months).
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Plaintiffs also allege that Terry and Andraya “abruptly appeared” in girls’ track competition. Compl. ¶¶ 76, 87. Neither Andraya nor Terry “abruptly” began competing in girls’ track. Rather, both girls spent long periods of their lives coming to terms with their gender, coming out to their friends and family, and then transitioning at school. Yearwood Decl. ¶ 2; T.M. Decl. ¶¶ 3-4. Only then did they begin to compete on girls’ teams consistent with the recommendation of medical providers and CIAC policy. Yearwood Decl. ¶ 6; T.M. Decl ¶ 10.
Throughout their Complaint, Plaintiffs also refer to Andraya and Terry as “biological males” but offer no consistent definition of “biological male.” There are many biological components of sex, including chromosomal, anatomical, hormonal, and reproductive elements. These elements do not always align within an individual as typically male or typically female, either because that individual has intersex traits or because that individual has undergone medical care for gender dysphoria. For these reasons, the Endocrine Society has said “the terms ‘biological sex’ and ‘biological male or female’ are imprecise and should be avoided.” See Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 743 (E.D. Va. 2018). Plaintiffs appear to equate “biological sex” with chromosomes, Compl. ¶¶ 4, 67, 101, but all of their alleged “inescapable biological facts,” id. ¶ 47, are the result of hormones—not chromosomes.
For example, Plaintiffs focus on alleged athletic advantages resulting from “male puberty,” but as a result of puberty blockers and hormone therapy, many transgender girls go through a typically female puberty, and many transgender boys go through a typically male puberty. A girl who is transgender and who has XY chromosomes undergoing puberty blocking treatment, therefore, would have none of alleged advantages of “male puberty” that Plaintiffs attribute to “biological males.” Even if a girl who is transgender begins puberty based on her sex assigned at birth, there is no evidence to support the assumption that girls who are transgender
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and who receive hormone therapy retain any of the alleged advantages identified by Plaintiffs as being outside the range of performance for non-transgender girls. See NCAA Inclusion of Transgender Student-Athletes at 7.
Referring to Andraya and Terry as “males,” Plaintiffs claim that “if males compete in girls’ events after puberty, equally gifted and dedicated female athletes simply can’t win.” Compl. ¶ 60. But neither Terry nor Andraya is undefeated and neither have dominant race times among high school girls nationally. Plaintiffs list the best 2019 Outdoor times for the 100m for girls, see id. ¶ 54, and the best times listed for Terry and Andraya do not come close to the best times registered for the presumably non-transgender girls on that list, see id. ¶¶ 80, 86, 89. Thus, based on the allegations in the Complaint alone, it is demonstrably untrue that a non-transgender female athlete “can’t win” in a race with a transgender athlete. Indeed, two days after filing the complaint, Plaintiff Chelsea Mitchell beat both Terry and Andraya in the 55 meter race and beat Terry in the 300 meter race at the Connecticut State Championship for Class S for the 2020 Indoor Track & Field season. T.M. Decl. ¶14; Yearwood Decl. ¶ 11.
In their Complaint, Plaintiffs also claim that their alleged deprivation of participation at championship meets cost them “the visibility necessary to attract the attention of college recruiters and resulting scholarships.” Compl. ¶ 103. But Plaintiffs make no allegations that college recruitment and the resulting scholarships are linked to participation in certain meets or tied to a threshold of media coverage, as opposed to result times alone. All track and field race times are publicly available and college recruiters can assess a runner’s skill, consistency, and improvement through high school based solely on result times. T.M. Decl. ¶ 16.
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ARGUMENT I. Andraya and Terry Are Entitled To Intervene As of Right
“To intervene as of right, a movant must: (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 128–29 (2d Cir. 2001) (internal quotation marks omitted). See Fed. R. Civ. P. 24(a)(2). Andraya and Terry satisfy every element of this test.
A. Andraya and Terry’s Motion Is Timely. Andraya and Terry’s motion to intervene is timely because it has been filed only nine days after Plaintiffs’ complaint, and before any responsive pleadings have been filed by Defendants. See Tyson v. Alvarez, No. 17-cv-731, 2018 WL 5961425, at *1 (D. Conn. Nov. 14, 2018) (holding that motion to intervene was timely where “one defendant has not yet been served” and “discovery has only recently commenced”); Privacy Matters v. United States Dep’t of Educ., No. 16-CV-3015 (WMW/LIB), 2016 WL 6436658, at *3 (D. Minn. Oct. 27, 2016) (same where “Defendants have not yet answered Plaintiffs’ complaint, no scheduling order has been issued, and discovery has not begun”); Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1916 (3d ed. 2002) (explaining that “an application made before the existing parties have joined issue in the pleadings has been regarded as clearly timely”). B. Andraya and Terry Have a Protectable Legal Interest that Could Be Impaired
By Disposition of This Action. Andraya and Terry have a protectable legal interest in being able to compete in the spring track and field season and in protecting records of their past accomplishments. “For an interest to be cognizable by Rule 24(a)(2), it must be direct, substantial, and legally protectable.” Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (internal quotation
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marks omitted). In this case, Plaintiffs’ lawsuit poses a direct and substantial threat to Andraya and Terry’s interests, which are protected under Connecticut law, Title IX, and the Equal Protection Clause. The relief that Plaintiffs seek is an injunction prohibiting Andraya and Terry from competing in the spring season of track and field and expunging Andraya and Terry from the records of any previous track-and-field season in which they competed.
In similar situations, district courts have routinely held that transgender students have a legally protectable interest when non-transgender students challenge policies at their school protecting them from discrimination. See Meriwether v. Trustees of Shawnee State Univ., No. 1:18-CV-753, 2019 WL 2052110, at *9 (S.D. Ohio May 9, 2019) (granting intervention to transgender student who “established a specific and direct interest in the subject matter of this litigation, which involves [her school’s] Non-discrimination Policy and its application and enforcement for the protection of transgender students”); Privacy Matters, 2016 WL 6436658, at *3 (holding that Jane Doe, a transgender student, had standing to intervene because “Plaintiffs seek preliminary and permanent injunctive relief that would require Doe’s school to prohibit Doe from using the school restrooms and locker rooms that align with her gender identity” and explaining that “if Plaintiffs prevail on the merits, she will suffer an injury because her school will immediately stop providing her with equal treatment as required under Title IX, 20 U.S.C. §§ 1681, et seq., and the Equal Protection Clause of the United States Constitution”); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., No. 2:16-CV-524, 2016 WL 4269080, at *4 (S.D. Ohio Aug. 15, 2016) (holding that Jane Doe, a transgender student, had substantial interest allowing her to intervene in lawsuit seeking to exclude her from using the girls’ restrooms).
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The Second Circuit’s decisions in Bridgeport Guardians, 602 F.3d at 473, and Brennan, 260 F.3d at 129, are instructive. In both cases, white male employees were allowed to intervene as defendants in employment discrimination cases brought against their employers. The intervening white male employees argued that granting relief to the original plaintiffs, who alleged discrimination against women and racial minorities, would adversely affect intervenors’ own employment status and seniority rights. The Second Circuit held that the white male employees could intervene because their legal interests were “the mirror image” of the claims asserted by the original plaintiffs. Brennan, 260 F.3d at 130. The white male employees had a right to intervene because the central issue in the case was “whether the remedy [requested by the original plaintiffs] restores circumstances that would have existed but for discrimination or is itself discrimination [against the intervenors].” Id. at 130-31; see Bridgeport Guardians, 602 F.3d at 474.
The same is true here. Plaintiffs have alleged that allowing Andraya and Terry to play on the same track and field team as other girls violates Plaintiffs’ rights under Title IX. Andraya and Terry’s defenses are “the mirror image” of those claims. Granting Plaintiffs’ requested injunctive relief and banning Andraya and Terry would not remedy any legally cognizable discrimination against Plaintiffs, but would instead constitute unlawful discrimination against Andraya and Terry. See, e.g., Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (treating boy who is transgender differently than other boys in the context of single-sex restroom access violates Title IX); Grimm v. Gloucester Cty Sch. Bd., 400 F. Supp. 3d 444 (E.D. Va. 2019) (same); Adams v. Sch. Bd. of St. Johns Cty, 318 F. Supp. 3d 1293 (M.D. Fla. 2018) (same); M.A.B. v. Bd. of Educ. of Talbot Cty, 286 F. Supp. 3d 704, 719-22 (D. Md. 2018) (same); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017) (same).
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C. Movants’ Interests Are Not Adequately Represented By an Existing Party. Andraya and Terry’s interests are not adequately protected by the current defendants. The burden to demonstrate inadequacy of representation is “minimal,” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972), but the Second Circuit has “demanded a more rigorous showing of inadequacy in cases where the putative intervenor and a named party have the same ultimate objective,” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001). Specifically, “[w]here there is an identity of interest . . . the movant to intervene must rebut the presumption of adequate representation by the party already in the action.” Id. at 17980. “[R]epresentation by an existing party is determined to be adequate only if the party’s ‘interests are so similar to those of the intervenor that adequacy of representation is assured.” Willis v. Firestone Bldg. Prod. Co., 231 F.R.D. 447, 449 (D. Conn. 2005) (quoting Brennan, 260 F.3d at 133) (brackets omitted) (emphasis added by Willis). In this case, Andraya and Terry seek to defend the lawfulness of Defendants’ policy, but their interests and Defendants’ interest are not “so similar . . . that adequacy of representation [is] assured.” Brennan, 260 F.3d at 133. As the Second Circuit explained in Brennan, a defendant faced with competing discrimination claims “may . . . behave like a stakeholder rather than an advocate” because the defendant may have “an equally strong or stronger interest in bringing such litigation to an end by settlements.” 260 F.3d at 133; see also Briscoe v. City of New Haven, 654 F.3d 200, 203 (2d Cir. 2011) (holding in context of non-party preclusion that city defending racial discrimination claim by white applicants did not adequately represent the interests of nonwhite applicants with contrary discrimination claims “because their interests are widely divergent”).
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Once again, the same is true here. Faced with the prospect of expensive litigation, Defendants’ have an interest in defending their policy, but they also have an interest in bringing the litigation to a speedy and inexpensive conclusion. Andraya and Terry are the only potential parties with an undivided interest in protecting their rights to equal treatment. See Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1909 (“Since the rule is satisfied if there is a serious possibility that the representation may be inadequate, all reasonable doubts should be resolved in favor of allowing the absentee, who has an interest different from that of any existing party, to intervene so that the absentee may be heard in his own behalf.”).
Moreover, although Defendants may be willing to defend the lawfulness of their current athletic policy, they may not have a similar incentive to argue that the policy is legally required by Title IX and the Equal Protection Clause. See N.Y. Pub. Interest Research Grp. v. Regents of Univ. of State of N.Y., 516 F.2d 350, 352 (2d Cir. 1975) (granting intervention because intervenors would “make a more vigorous presentation of the economic side of the argument than would the [defendants]”); Meriwether, 2019 WL 2052110, at *12 (holding that transgender student’s interests were not adequately represented by university defending nondiscrimination policy because university did not affirmatively argue that the policy was required by the Constitution and Title IX).
Finally, Defendants have neither the same incentive nor the same ability as Andraya and Terry to rebut the numerous factual inaccuracies in Plaintiff’s complaint and to ensure that their personal information and history is correctly presented. Terry and Andraya are best positioned to contest the allegations that are directed at them personally, to provide their responses to the Plaintiffs’ alleged injuries, and to accurately and fully identify the harms that would result from Plaintiffs’ requested relief. They deserve the opportunity to answer these inaccuracies directly,
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rather than relying on the Defendants to do so with only partial information. See, e.g., Day v. Sebelius, 227 F.R.D. 668, 674 (D. Kan. 2005) (granting intervention where “none of the[] existing defendants are or ever will be personally impacted by [the challenged law]. The proposed intervenors may have access to evidence that the government of the state of Kansas and the officials of Kansas colleges may not have.”)
II. In the Alternative, Andraya and Terry Should Be Granted Permissive Intervention.
Andraya and Terry also satisfy the requirements for permissive intervention under Rule 24(b)(1). On a timely motion, the Court may permit anyone to intervene who has a claim or defense that shares a common question of law or fact with the main action. Fed. R. Civ. P. 24(b)(1). In exercising its discretion, the Court “considers substantially the same factors” as for an intervention as of right. “R” Best Produce v. Shulman-Rabin Marketing, 467 F.3d 238, 240 (2d Cir. 2006). “A district court may grant a motion for permissive intervention if the application is timely and if the ‘applicant’s claim or defense and the main action have a question of law or fact in common.’” In re Holocaust Victim Assets Litig., 225 F.3d 191, 202 (2d Cir. 2000) (quoting Fed. R. Civ. P. 24(b)(2)).
Permissive intervention is particularly appropriate here because the Defendants may face multiple lawsuits with conflicting results if Andraya and Terry are not joined as parties. Indeed, Federal Rule of Civil Procedure 19(a)(1)(B) specifically instructs that a person is considered an “indispensable party” if they “claim[] an interest relating to the subject of the action and [are] so situated that disposing of the action in the person’s absence may . . . leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” See Briscoe, 654 F.3d at 203 (advising that when faced with potential
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competing discrimination suits, an employer should join all interested parties so they can be
bound by the same litigation).
The same considerations support granting permissive intervention here. If Andraya and
Terry are not permitted to intervene, a settlement or other resolution of the case would likely lead
to subsequent litigation by Andraya, Terry, and other transgender student-athletes whose rights
are affected under the resolution but not represented in the litigation. See Students & Parents for
Privacy v. U.S. Dep’t of Educ., No. 16 C 4945, 2016 WL 3269001, at *3 (N.D. Ill. June 15,
2016) (allowing transgender student to intervene because granting the motion to intervene could
obviate subsequent lawsuits).
CONCLUSION
For all the foregoing reasons, the Motion of Andraya and Thania Edwards on behalf of
her daughter T.M. to Intervene should be granted.
Respectfully submitted,
__/s/ Dan Barrett______ Dan Barrett (# ct29816) ACLU Foundation of Connecticut 765 Asylum Avenue, 1st Floor Hartford, CT 06105 (860) 471-8471 e-filings@acluct.org
Chase Strangio* Joshua A. Block* Lindsey Kaley* James D. Esseks* Galen Sherwin* American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 cstrangio@aclu.org
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Case 3:20-cv-00201-RNC Document 36 Filed 02/21/20 Page 16 of 16 jblock@aclu.org lkaley@aclu.org jesseks@aclu.org gsherwin@aclu.org *Pro hac vice admissions pending
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 Case 3:20-cv-00201-RNC Document 75 Filed 03/24/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a minor, by Christina Mitchell, her mother; ALANNA SMITH, by Cheryl Radachowsky, her mother
Plaintiffs,
v.
CONNECTICUT ASSOCIATION OF SCHOOLS, INC. d/b/a CONNECTICUT INTERSCHOLASTIC ATHLETIC CONFERENCE; BLOOMFIELD PUBLIC SCHOOLS BOARD OF EDUCATION; CROMWELL PUBLIC SCHOOLS BOARD OF EDUCATION; GLASTONBURY PUBLIC SCHOOLS BOARD OF EDUCATION; CANTON PUBLIC SCHOOLS BOARD OF EDUCATION; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION
Defendants.

No. 3:20-cv-00201 (RNC)

STATEMENT OF INTEREST The United States files this Statement of Interest under 28 U.S.C. § 517, which authorizes the Department of Justice “to attend to the interests of the United States in a suit pending in a court of the United States.” Id. The United States enforces Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and has a significant interest in the proper interpretation of Title IX. The United States also enforces several other federal anti-discrimination statutes that, like Title IX, prohibit sex discrimination, e.g. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the United States has a significant interest in the proper interpretation of these laws. The United States also has a significant interest in ensuring that
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federal funds are not used to discriminate on the basis of sex and other protected classes. See 20 U.S.C. § 1682.
INTRODUCTION Title IX requires that “[n]o person in the United States shall, on the basis of sex, . . . be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a); accord 34 C.F.R. § 106.41(a). Title IX’s prohibition against sex discrimination extends to athletics operated or sponsored by recipients of federal money. 34 C.F.R. § 106.41. As a result, covered institutions must “provide equal athletic opportunity for members of both sexes.” Id. § 106.41(c). The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females—despite the real physiological differences between the sexes—if the male is a transgender individual who publicly identifies with the female gender. CIAC claims that “federal law” requires this state of affairs. CIAC 2019-2020 Handbook (CIAC Handbook), at 55, http://www.casciac.org/pdfs/ ciachandbook_1920.pdf; see also Defs.’ Initial Summ. Issues at 7, ECF No. 63. So do the proposed student-intervenors. See Mot. to Intervene at 11, ECF No. 36. They are incorrect. Title IX and its implementing regulations prohibit discrimination solely “on the basis of sex,” not on the basis of transgender status, and therefore neither require nor authorize CIAC’s transgender policy. To the contrary, CIAC’s construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head. One of Title IX’s core purposes is to ensure that women have an “equal athletic opportunity” to participate in school athletic programs. 34 C.F.R. § 106.41(c); see also Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993) (“Equal opportunity to
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participate lies at the core of Title IX’s purpose.”). Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing. See 34 C.F.R. § 106.41(b)-(c). Because of the physiological differences between men and women, the existence of women’s sports teams permits women to participate more fully in athletics than they otherwise could.
Under CIAC’s interpretation of Title IX, however, schools may not account for the real physiological differences between men and women. Instead, schools must have certain biological males—namely, those who publicly identify as female—compete against biological females. In so doing, CIAC deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX. The United States therefore submits this Statement of Interest to aid the Court in the proper application of Title IX in this case.
TITLE IX DOES NOT MANDATE CIAC’S TRANSGENDER POLICY Title IX does not require that recipients assign students to participate in sex-specific athletic teams that reflect their gender identity. CIAC’s policy and its briefing to this Court construing Title IX conflict with the statute’s text, history, purpose, and implementing regulations. A. Text and History 1.a. Title IX prohibits “discrimination” in educational programs and activities “on the basis of sex.” 20 U.S.C. § 1681(a). Although Title IX includes statute-specific definitions of various terms, “sex” is not one of them. See id. § 1681(c) (defining “educational institution”); id. § 1687 (defining “program or activity” and “program”). Without such a definition, the term “sex” should “be interpreted as taking [its] ordinary, contemporary, common meaning.” Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted).
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When Congress enacted Title IX in 1972, the “ordinary, contemporary, common meaning” of “sex” was biological sex. In that same year, 1972, the United States explained to the Supreme Court that “sex, like race and national origin, is a visible and immutable biological characteristic,” U.S. Br. at *15, Frontiero v. Laird, No. 71-1694, 1972 WL 137566 (U.S. Dec. 27, 1972), and the Court agreed that “sex” is “an immutable characteristic determined solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
Also during the time period surrounding Title IX’s enactment, dictionaries defined “sex” as referring to the physiological distinctions between males and females, and more particularly their reproductive functions. For example, Webster’s Third defined “sex” as “one of the two divisions of organic esp. human beings respectively designated male or female,” or “the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction.” Webster’s New International Dictionary 2081 (3d ed. 1968). Other contemporaneous dictionaries defined “sex” similarly. See, e.g., American Heritage Dictionary of the English Language 1187 (1st ed. 1969) (“1. a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification.”); The American College Dictionary 1109-10 (1970) (“1. The character of being either male or female . . . 2. The sum of the anatomical and physiological differences with reference to which the male and female are distinguished or the phenomena depending on these differences.”); The Random House College Dictionary 1206 (1973) (“1. either the male or female division of a species esp. as differentiated with reference to the reproductive functions. 2. The sum of the structural and functional differences by which male and females are distinguished.”).
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Other provisions of Title IX employ “sex” as a binary term, and thus provide further confirmation that the prohibition on “sex” discrimination does not extend to discrimination on the basis of transgender status or gender identity. If the term “sex” in Title IX included “gender identity”—which, according to the American Psychiatric Association, may include “an individual’s identification as . . . some category other than male or female,” Diagnostic and Statistical Manual of Mental Disorders Fifth Edition 451 (2013) (emphasis added)—then multiple Title IX provisions would make little sense.
Title IX consistently uses “sex” as a binary concept capturing only two categories: male and female. For example, the statute creates an exception for “father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex.” 20 U.S.C. § 1681(a)(8) (emphases added). Likewise, Title IX includes a transitional period for an “educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes,” provided certain criteria are met. Id. § 1681(a)(2) (emphases added). Moreover, Title IX expressly provides that nothing in the statute “shall be construed to prohibit any educational institution . . . from maintaining separate living facilities for the different sexes.” Id. § 1686 (emphasis added).1 These provisions could not sensibly function if the term “sex” includes “gender identity,” which, unlike “sex,” may not be limited to two categories.
1 See also 34 C.F.R. § 106.32(b) (A recipient “may provide separate housing on the basis of sex” provided the housing provided “to students of one sex, when compared to that provided to students of the other sex, shall be” proportionate and comparable. (emphasis added)); 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” (emphasis added)).
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b. Historical context further confirms that Congress used the word “sex” in its ordinary biological sense. “Title IX was enacted in response to evidence of pervasive discrimination against women with respect to educational opportunities, which was documented in hearings held in 1970 by the House Special Subcommittee on Education.” McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 286 (2d Cir. 2004); see also North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 523 n.13 (1982). Against that backdrop, members of Congress voting on Title IX and any politically engaged citizen would have understood the law as directed at eliminating discrimination in education based on biological sex—i.e., unequal treatment of men and women—consistent with the term’s ordinary meaning.
Congress’s actions in the 48 years following Title IX’s enactment confirm that “sex” in this statute does not encompass transgender status. In other statutory contexts, Congress has acted affirmatively to address gender-identity discrimination as a distinct category separate from sex discrimination. For example, when Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, Pub. L. No. 111-84, Div. E., 123 Stat. 2190 (2009), Congress found that the “incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem.” 34 U.S.C. § 30501(1) (emphasis added).
Congress accordingly used the Hate Crimes Prevention Act to amend or create several statutory provisions that prohibited or otherwise specifically addressed discrimination based on “gender identity,” in addition to discrimination based on “sex” or “gender.” See 18 U.S.C. § 249(a)(2)(A) & (c)(4) (prohibiting acts or attempts to cause bodily injury to any person “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and defining “gender identity” as “actual or perceived
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gender-related characteristics” (emphasis added)); 34 U.S.C. § 30503(a)(1)(C) (regarding federal assistance to state, local, or tribal investigations of crimes “motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim” (emphasis added)); id. § 30506(2) (construing violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim (emphasis added)); id. § 41305(b)(1) (regarding compiling statistics “about crimes that manifest evidence of prejudice based on race, gender and gender identity, religion, disability, sexual orientation, or ethnicity) (emphasis added)).
Similarly, in 2013, Congress amended the Violence Against Women Act to create a federal government enforcement action that protected the separate bases of sex and gender identity. See 34 U.S.C. § 12291(b)(13)(A) (2013), as amended by Pub. L. No. 113-4, § 3, 127 Stat. 56 (2013) (prohibiting discrimination in certain federally funded programs “on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in [18 U.S.C. § 249(c)(4)]), sexual orientation, or disability” (emphases added)).
These post-Title IX enactments illustrate that Congress “kn[ows] how” to prohibit discrimination based on gender identity when it wishes to do so. Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). “If Congress had meant to prohibit . . . transgender discrimination” in Title IX, “surely the most straightforward way to do so would have been to say so—to add . . . ‘transgender status’ or ‘gender identity’ to the list of classifications protected under” Title IX. Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring) (addressing Title VII). Congress did not do so when originally enacting Title IX or subsequently. Instead, Congress has failed to enact proposed bills to amend Title IX to add
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protections for “gender identity.” See, e.g., H.R. 1652, 113th Cong. (2013); S. 439, 114th Cong. (2015).
To be sure, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Subjective expectations of Members of Congress as to which particular practices Title IX would prohibit therefore do not control. But the historical context makes clear that, in using the term “sex,” Congress was referring to discrimination based on biological sex— i.e., unequal treatment of men and women—consistent with the term’s ordinary meaning. Conversely, the United States knows of no evidence showing that when Congress employed the term “sex” in Title IX it did so to reach anything about transgender status, and CIAC has identified none.
2. In addition, Title IX prohibits only “discrimination” “on the basis of sex,” 20 U.S.C. § 1681(a) (emphasis added), and requiring all students to participate on the athletic team associated with their biological sex cannot be described as sex “discrimination.” The “normal definition of discrimination, is differential treatment” or, more specifically, “less favorable treatment.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (citation and internal quotation marks omitted) (construing “discrimination” in Title IX). Thus, for a prohibition on discrimination because of sex, “[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions . . . to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (citation omitted) (addressing Title VII). Requiring students to participate on the athletic team associated with their biological sex accounts for the real physiological differences between the sexes in a manner that burdens each sex equally, which is the main reason why Defendants may continue to maintain single-sex teams. See infra Part B.
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The situation is no different for transgender students specifically: biological males with a female gender identity are exposed to the same conditions as similarly situated biological females with a male gender identity.
Indeed, because such a policy would facially turn solely on biological differences rather than on gender identity, the policy would not even consider, much less discriminate on the basis of, transgender status. School officials would not even have to “know an individual’s transgender status in order to enforce the policy—knowledge of characteristics unrelated to gender preference is both necessary and sufficient.” Doe 2 v. Shanahan, 917 F.3d 694, 733 (D.C. Cir. 2019) (Williams, J., concurring in result) (addressing military policy requiring all “service members [to] serve ‘in their biological sex’”); cf. Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003) (noting that if an employer “were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent’s disability”).
If the law were otherwise, countless sex-specific policies would be per se unlawful. A policy mandating that male students not frequent the women’s bathrooms or locker rooms, for example, would be susceptible to challenge. And so would a policy setting different physicalfitness standards for male and female athletic events. Indeed, many of Title IX’s implementing regulations—which permit sex-specific athletic teams, bathrooms, locker rooms, or shower facilities—would be in jeopardy if CIAC’s view of sex discrimination were to carry the day. See 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”); id. § 106.41(b) (permitting “separate teams for members of each sex”); see also infra Part B.
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Nothing in Title IX or Supreme Court precedent requires such radical upheaval. To the contrary, the Supreme Court has recognized that sex-based classifications sometimes are permissible because certain “differences between men and women” are “enduring.” United States v. Virginia, 518 U.S. 515, 533 (1996). That holds true in the area of physical-fitness standards, as “[m]en and women simply are not physiologically the same for the purposes of physical fitness programs.” Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016) (finding FBI did not violate Title VII when using different physical fitness standards for special agent candidates based on sex); see also Virginia, 518 U.S. at 550 n.19 (admitting women to a previously all-male military academy “would undoubtedly require” that institution “to adjust aspects of the physical training programs”).
B. Purpose and Regulations Far from being required by Title IX, CIAC’s transgender policy is in tension with “the core of Title IX’s purpose”—namely, ensuring that women have an “[e]qual opportunity to participate” in educational programs and activities at covered institutions. Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993); accord McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 286-95 (2d Cir. 2004). Notably, Congress reaffirmed that Title IX’s core purpose was to provide women equal opportunities—and particularly athletic opportunities —with the Civil Rights Restoration Act of 1987, which superseded a Supreme Court decision that limited the scope of Title IX. As the Second Circuit observed, “[t]he congressional debate leading to the passage of [the Civil Rights Restoration Act] demonstrates concern by members of Congress about ensuring equal opportunities for female athletes.” McCormick, 370 F.3d at 28788; see also Cohen, 991 F.2d at 894 (“Although the Restoration Act does not specifically
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mention sports, the record of the floor debate leaves little doubt that the enactment was aimed, in part, at creating a more level playing field for female athletes.”).
Title IX’s athletic regulations further the statute’s purpose by expressly contemplating the existence of single-sex teams. As Title IX’s sponsor promised, the statute and its implementing regulations would “permit differential treatment by sex . . . in sport facilities,” 118 Cong. Rec. 5807 (1972) (statement of Sen. Bayh), and would not mandate, for instance, the “desegregation of football fields,” 117 Cong. Rec. 30407 (1971) (statement of Sen. Bayh); see North Haven Bd. of Ed., 456 U.S. at 526-27 (“Senator Bayh’s remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute’s construction.”). Accordingly, those regulations provide that a recipient of federal funds does not violate Title IX when it “operate[s] or sponsor[s] separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” 34 C.F.R. § 106.41(b). And the regulations expressly require “[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics [to] provide equal opportunity for members of both sexes.” Id. § 106.41(c).
CIAC nevertheless has decided to force biological girls to compete against biological boys who publicly identify with the female gender and want to compete on sex-specific athletic teams. Specifically, CIAC’s policy determines eligibility for sex-specific sports teams according to a student’s gender identification “in current school records and daily life activities in the school and community,” and does not require students to attempt to undergo any physiological changes to reflect their gender identity. CIAC Handbook at 55. Accordingly, CIAC’s transgender athletic policy is in tension with the core purpose of Title IX and its implementing regulations.
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The policy also illustrates why this Court should not read Title IX to compel schools to require students to participate on sex-specific teams solely on the basis of their gender identity. Even if the term “sex” is somehow ambiguous, if “only one of the permissible meanings” of an allegedly ambiguous term “produces a substantive effect that is compatible with the rest of the law,” this Court should adopt it because the Judiciary “cannot interpret federal statutes to negate their own stated purposes.” King v. Burwell, 135 S. Ct. 2480, 2492-93 (2015) (citations omitted). Reading Title IX to compel schools to require biological males to compete against biological females in athletic competitions is precisely the type of interpretation that this Court should reject on this ground.
CONCLUSION For the foregoing reasons, this Court should reject the assertion that Title IX requires CIAC’s transgender policy.
Respectfully submitted,

JOHN H. DURHAM United States Attorney District of Connecticut
JOHN B. HUGHES Civil Chief United States Attorney’s Office District of Connecticut 157 Church Street, 25th Floor New Haven, Connecticut 06510
DATED: March 24, 2020

WILLIAM P. BARR Attorney General
ERIC S. DREIBAND Assistant Attorney General Civil Rights Division
s/ Matthew J. Donnelly MATTHEW J. DONNELLY (PHV10507) Attorney United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202-616-2788 matthew.donnelly@usdoj.gov
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Case 3:20-cv-00201-RNC Document 75 Filed 03/24/20 Page 13 of 13 CERTIFICATE OF SERVICE
I hereby certify that on March 24, 2020, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will send notification of such filing to all counsel of record.
s/ Matthew J. Donnelly MATTHEW J. DONNELLY (PHV10507) Attorney for the United States
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