Challenge to transgender athletic policy fails because no damages are available under Title IX

The female plaintiffs in this case are challenging the legality of the State of Connecticut's decision to allow transgender girls to compete in high school sports with other girls. They claim this policy violates Title IX's prohibition against sex discrimination in education. This is an interesting legal issue and I am sure it will reach the Supreme Court some day, but the Court of Appeals decides it cannot reach these issues on the merits because there are no damages available for such a violation.

The case is Soule v. Connecticut Association of Schools, Inc., issued on December 16. In this blog post, I discuss the Court of Appeals' holding that no injunctive relief is available. But the case may still proceed if the four plaintiffs can recover compensatory damages, including those for pain and suffering. They cannot.

Title IX is similar in many ways to Title VII, the employment discrimination statute that allows for pain and suffering damages. But Title IX is a federal funding statute that requires funding recipients to treat all genders fairly or they lose their funding. Title VII does not impose any such conditions on employers. Under Title IX, therefore, "private damages . . . are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue." The Supreme Court said that in Davis v. Monroe County Bd. of Educ. (1999). The exception to this rule is when the funding recipient engages in intentional conduct that violates the clear terms of the statute. The Supreme Court said that in Davis as well. The issue is whether the Connecticut defendant here was on notice that allowing transgender girls to compete with other girls might be illegal, or whether its intentional conduct violated the clear terms of Title IX. The answer is no.

The Office of Civil Rights, a federal agency that enforces Title IX, has never clearly said that allowing transgender students to participate on athletic teams consistent with gender identity violates Title IX. Moreover, the Supreme Court's 2020 ruling in Bostock v. Clayton County said that employers violate Title VII when they discriminate against transgender employees. That analysis "strongly support[s] the conclusion that CIAC and its member schools lacked notice that a policy such as that at issue here violates Title IX." CIAC is the acronym for the defendant in this case. Other federal appellate rulings from around the country have already held that policies that treat transgender students consistent with their gender identity do not violate Title IX.