Christian School cannot be punished for forfeiting basketball game against transgender athelete

I am surprised this case has not gotten more attention. The Court of Appeals addresses a prominent issue in the modern culture wars: transgender athletes. The Court holds that a private Christian school may challenge the Vermont Principals' Association's decision to punish the school after it forfeited a basketball game in which the opposing team which had a transgender girl on the roster.

The case is Mid Vermont Christian School v Saunders, issued on September 9. This was a playoff game where the opposing team had a transgender athlete. The Christian School forfeited the game because it violated their religious principles. As the Court of Appeals puts it, "The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs." In a press release, the school also said that "playing against an opponent with a biological male jeopardizes the fairness of the game and the safety of our players," and that allowing the transgender athlete to complete in the game "sets a bad precedent for the future of women's sports in general." In forfeiting the game, the defendant association expelled the school from all state-sponsored extracurricular activities. Hence this case brought under the First Amendment's Free Exercise Clause.

The Second Circuit (Park, Wesley and Sullivan) says the district court should have granted the school a preliminary injunction striking down the adverse consequences of its failure to complete against the team with the transgender athlete. While free exercise challenges fail when the government applies a facially-neutral rule against everyone, that rule does not apply here because the school can show the VPA did not act neutrally toward plaintiff's religious beliefs. Here's why:

1. Shortly after this all happened, Jay Nichols, the VPA's executive director, testified before Vermont's House Education Committee as follows:

A state approved Christian private school sends a letter to the VPA asking that another school no longer be allowed   to   play   a   transgender   identifying youth . . . . [T]his Christian school forfeits so they won’t have to play against this team that has a transgender student . . . . The VPA followed the law, of course, and our policies, and will continue to ensure this child and all transgender  student  athletes  have  equal  access  to educational opportunities the same as all Vermont children should have.  Thank goodness the student in question didn’t attend that religious school . . . but what if they did?  Would we be okay with that blatant discrimination under the guise of religious freedom?

The Court of Appeals says this public comment "supports the inference that the VPA's punishment was informed by hostility toward certain religious beliefs." This would mean that Nichols "failed to serve as a neutral decisionmaker who gave full and fair consideration to Mid Vermont's religious objection."

2. In the school's administrative appeal to the VPA's Academic Standards Committee, that body "explained that the substance of the religious claim was 'wrong,'" and it therefore did not just attack the school's  religious sincerity but the validity of the school's objection. As "courts should not inquire into the centrality of a litigant's religious beliefs," the committee imposed discipline based on its view that the school's religious objection was wrong.

3. Expelling the school from extra-curricular activities violated VPA's own norms, as it has never before banned a school from all sporting events, and the school was also banned from any interschool activity, such as spelling bees and math competitions. Nor did VPA follow its own procedures in imposing the expulsion, the Second Circuit holds, as it rushed to impose discipline without conducting a formal investigation and other due process guarantees.