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Education Department Reverses Anti-Transgender Athlete Policy

Feb. 24, 2021, 5:38 PM

The Biden administration withdrew a statement of interest filed by former Education Department Secretary Betsy DeVos in support of a federal suit seeking to bar Connecticut school districts from allowing transgender students to participate in girls’ sports, saying the government “has reconsidered the matter.”

The administration also notified the school districts it is withdrawing notices of an impending enforcement action issued in 2020 that assert the districts are violating Title IX by allowing transgender athletes’ participation. Biden’s Education Department is also withdrawing the Trump administration’s supporting findings and determinations, it said in the filing Tuesday in the U.S. District Court for the District of Connecticut.

The Trump administration issued notices of enforcement against the districts without the review required by the Office of Management and Budget, the new notice says.

The Connecticut students that filed the suit, backed by a conservative Christian group, allege that allowing transgender students to participate in the girls’ program amounts to discrimination against girls.Title IX forbids education programs or activities receiving federal financial assistance from discriminating against persons based on their sex.

The Education Department’s prior statement in the Connecticut case, filed just less than a year ago, said the Connecticut Interscholastic Athletic Conference’s “construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head.”

Despite its support for the case, the Education Department under DeVos fought efforts by the school districts to make the department a party to the lawsuit, saying it “would substantially harm ED’s interest by forcing ED to engage in a process outside the established administrative process for resolving plaintiffs’ administrative complaint.”

The department’s 2020 notice of enforcement found that the school districts, by allowing transgender athletes to participate in girls’ sports, “treated student-athletes differently based on sex, by denying benefits and opportunities to female students that were available to male students.”

The named defendants are the Connecticut Interscholastic Athletic Conference; Bloomfield Public Schools Board of Education; Cromwell Public Schools Board of Education; Glastonbury Public Schools Board of Education; Canton Public Schools Board of Education; and Danbury Public Schools Board of Education.

The named plaintiffs are four non-transgender girls: Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti. Soule and Mitchell have now graduated from high school.

Judge Robert N. Chatigny is overseeing the litigation.

The plaintiffs are represented by Alliance Defending Freedom. Ford Harrison LLP, Howd & Ludorf LLC, and Shipman & Goodwin LLP represent the defendants. ACLU Foundation of Connecticut represents the transgender athlete intervenors.

The case is Soule v. Conn. Ass’n of Sch. Inc., D. Conn., No. 20-cv-00201, 2/23/21.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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