The culture wars have arrived at the Second Circuit

In a rare en banc ruling, the Court of Appeals holds that a female athletes who graduated from a public high school years ago have standing to sue Connecticut school authorities for monetary damages under Title IX for gender discrimination because they lost out on certain athletic honors to transgender athletes. They can also recover injunctive relief in the form of a retroactive change in the record books.

The case is Soule v. Connecticut Association of Schools, issued on December 15. The case was previously resolved by a three-judge panel, which held the women cannot recover economic damages. But the full Second Circuit took up the case - a rare occurrence -- and said the woman may in fact recover economic damages. The en banc court did not determine whether the plaintiffs have a case on the merits; that issue can only be resolved at the district court through a possible trial, which I am sure will turn into a spectacle as experts will debate the legality of allowing transgender girls to compete in womens' sports. At this point, the case only addresses whether the harms they allegedly suffered have any monetary value. The en banc court also says the women have standing to sue for injunctive relief in the form of a retroactive alteration of private athletic records for events that took place years ago.

Here are the holdings:

1. The plaintiffs have standing to sue under Article III of the Constitution because the denial of equal athletic opportunities (in the form of allowing transgender athletes to compete against them) might constitute a concrete injury through the loss of recognized titles and placements in track and field competitions. This is because all discriminatory treatment, in whatever form it takes, creates a concrete injury under Supreme Court precedent. 

2. Monetary damages are available in a case like this. It may not be a lot of money, and perhaps it will only be nominal damages, but as noted above, all acts of discrimination entitle you to at least some money. 

3. Injunctive relief, the most interesting part of the opinion, at least for me. The Court says that while the athletic events cannot have any do-overs, the trial court can order the school authorities to alter the record books to show that plaintiffs and not their transgender competitors actually won their athletic competitions. This of course assumes the trial court actually rules in plaintiff's favor on the merits of the case and finds that Title IX was violated in allowing transgender girls to compete against the plaintiffs.

En banc rulings are rare and usually involve concurring and dissenting opinions. That makes en banc ruling the equivalent of the Supreme Court for the Second Circuit. If you are keeping score, here is the lineup for the majority ruling: Nathan (Biden appointee), Livingston (George W. Bush), Sullivan (Trump), Bianco (Trump), Park (Trump), Nardini (Trump) and Menashi (Trump). Lohier (Obama) only agrees that plaintiffs may recover nominal damages for any Title IX violation. Perez (Biden) writes that plaintiffs cannot recover any injunctive relief. Marriam (Biden) says that plaintiffs lack standing. Chin (Obama), along with Carney (Obama), and Kahn (Biden) says plaintiff cannot win any injunction or economic damages.