The Department of Education (ED) on Tuesday reversed its previous opposition to Connecticut’s policy of allowing biological males to play girls’ sports.
In a letter to attorneys for several Connecticut public school districts and its high school athletic association, the agency’s Office for Civil Rights said it would be withdrawing its previous findings that the state athletic policy violated Title IX.
Beginning in 2017, the Connecticut Interscholastic Athletic Conference allowed student athletes to participate in sports based on their gender identity. Three female track athletes filed a complaint with the ED civil rights office and sued over the policy, alleging that it discriminated against them.
In response, the agency last year sided with the girls that the state policy violated Title IX—but has now withdrawn that stance under the new Biden administration.
The group Alliance Defending Freedom (ADF) said the office’s action on Tuesday was “defying common sense.”
The decision “can’t change biological reality or the correct interpretation of the law,” said Christiana Holcomb, legal counsel with ADF.
ADF is representing three girls in their lawsuit against the Connecticut Association of Schools. The girls alleged that they were adversely affected by having to compete against biological males in track events, with benefits such as college scholarships possibly being at stake.
Two biological males identifying as transgender females won 15 state championships in women’s track events. One of the males broke 10 state records previously held by ten different female athletes.
The girls’ complaint in Soule v. Connecticut Association of Schools said that sex-specific sports have been based on “biological differences,” as “those differences matter for fair competition.”
In response, the Trump administration issued letters of impending enforcement action against Connecticut, ruling that the state’s high school athletics policy violated federal civil rights law.
Title IX of the 1972 Educational Amendments Act prohibits sex discrimination in federally-funded education activities and programs. The Education Department also had referred the cases to the Justice Department.
On Tuesday, however, the ED civil rights office not only said it was withdrawing its previous findings in the cases, but also said that it would be reviewing the cases based on President Biden’s recent executive order reinterpreting sex discrimination.
That Jan. 20 order said that federal civil rights protections against sex discrimination also protect against discrimination on the basis of sexual orientation and gender identity. Legal experts warned that the sweeping order would force girls to share sports, locker rooms, and shelters with biological males identifying as transgender females.
“Males will always have inherent physical advantages over comparably talented and trained girls; that’s the reason we have girls’ sports in the first place,” Holcomb said on Wednesday.
Title IX “exists precisely because of these differences” between men and women, “and is intended to ensure that women and girls have an equal opportunity to compete, achieve, and win,” she said.
On Feb. 4, Biden’s nominee for education secretary said that students identifying as transgender female should be allowed to participate in girls’ sports.
Miguel Cardona, currently Connecticut’s education commissioner, told senators that he believes it “is the legal responsibility of schools to provide opportunities for students to participate in activities, and this includes students who are transgender.”
After the Supreme Court in June ruled that federal protections against sex-based employment discrimination also protect gender identity, the ED civil rights office said it would continue to get Connecticut to comply with Title IX.
The Supreme Court’s Bostock decision addressed a separate case of employment discrimination under Title VII of civil rights law, the office said, noting that Connecticut’s policy still violated Title IX.
Connecticut school districts “treated student-athletes differently based on sex, by denying benefits and opportunities to female students that were available to male students,” the agency found.
