Federal Appeals Court Uses Gorsuch Opinion to Hint Transgender Athletes Have a Constitutional Right to Play Women's Sports

The Second US Circuit Court of Appeals handed down a decision Friday that gave federal recognition to the ability of men who believe (or pretend to believe) they are women to participate in women’s athletics. The case comes out of Connecticut, where two young men declared themselves women and proceeded on a rampage through high school track and field competitions.

Terry Miller of Bulkeley wins the 100m girls dash i. 11.72 (meet record). Andraya Yearwood of Cromwell 2nd, RHAM’s Bridget Lalonde 3rd #cttrack pic.twitter.com/4GmLRyicDI

— GameTimeCT (@GameTimeCT) June 4, 2018

Terry Miller of Bulkeley sets another meet record in winning the girls 200m, 24.17 #cttrack pic.twitter.com/6hAaFApIwk

— GameTimeCT (@GameTimeCT) June 4, 2018

Terry Miller of #Bulkeley set a new State Open record in the girls 100 meter with a time of 11.72 seconds. #cttrack #ciac #trackandfield pic.twitter.com/uPG9xiey3U

— JW (@AngryJohnnie) June 4, 2018

As we’ve seen time and again, allowing men to compete as though they were women results in demoralizing outcomes for women athletes. I should add, not only demeaning but dangerous. Earlier this year, a “trans” hockey player severely injured an actual female opponent. A professional trans MMA fighter, Fallon Fox, fractured an opponent’s eye socket (Gay Sports Magazine Declares Ex-Guy Who Beats up Women to Be ‘Bravest Athlete in History’),

Males, especially males after puberty, are bio-mechanically superior to women. That may be an unpopular opinion, but a woman’s body is optimized for child-bearing.

Some of the young women disadvantaged by the fraud perpetrated by a few Connecticut school districts spoke out and suffered for that.

Four women athletes, Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, and Selina Soule, sued to force Connecticut to limit women’s high school sports to women. A radical and outrageous concept in this day and age, to be sure.

The Friday decision supported the decision of a federal district judge to dismiss the case. That decision was largely procedural.

Judge Chatigny concluded that the plaintiffs lacked standing for the relief they were seeking. Some of their claims were deemed moot by the passage of time and subsequent events. By the time the motion to be dismiss was decided, the plaintiffs, who had graduated from high school, were no longer affected by the policy, so they lacked standing to seek an injunction against its enforcement. Also, the plaintiffs alleged that their athletic records were crucial to their ability to gain college admissions and subsequent employment, but by the time the Court of Appeals was considering this appeal, the plaintiffs had all been admitted to college and the impact of their final standing in CIAC competitions on their employment opportunities was deemed too speculative to support a claim of actual injury, which is necessary for the relief they were seeking. The Court of Appeals agreed with Judge Chatigny and affirmed the denial of injunctive relief.

I understand the reluctance of courts to deal with moot issues, in this case, the plaintiffs and defendants had already graduated from high school and there were no trans athletes participating in sports in Connecticut. But it also draws a roadmap for school districts wishing to avoid a court challenge. Just delay until the facts change.

The Appeals Court went further, implying that had the case made it to them that Federal law requires trans athletes to be allowed to compete in the sports division of their choice. The unanimous three-judge panel (two Obama and one Biden judge, but Chief Justice Roberts assures us that none of that matters) ruled:

In Bostock, the Supreme Court interpreted Title VII’s prohibition of discrimination “on the basis of sex” as proscribing discrimination based on one’s transgender status, 140 S. Ct. at 1737, and the Court has “looked to its Title VII interpretations of discrimination in illuminating Title IX,” Olmstead v. L.C. ex rel.Zimring , 527 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting). Title IX includes language identical to that in Title VII, broadly prohibiting discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). Thus, it cannot be said that the Policy — which prohibits discrimination based on a student’s transgender status by allowing all 26 students to participate on gender specific teams consistent with their gender identity — “falls within the scope of Title IX’s proscriptions.

What he’s referring to is Bostock v. Clayton County, a 2020 Supreme Court decision authored by Justice Gorsuch that equates sexual preference with biological sex.

This egregiously stupid opinion by Gorsuch is going to resurface again and again in the next few years as conservative state and local governments and school boards fight to bring this “fluid sexuality” crap to a halt.