21-1365-cv Selina Soule et al. v. Connecticut Association of Schools et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: September 29, 2022 Decided: December 16, 2022)

Docket No. 21-1365-cv

SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a minor, by Christina Mitchell, her mother; ALANNA SMITH, a minor, by Cheryl Radachowsky, her mother; ASHLEY NICOLETTI, a minor, by Jennifer Nicoletti, her mother, Plaintiffs-Appellants,

v.

CONNECTICUT ASSOCIATION OF SCHOOLS, INC. D/B/A 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; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION, Defendants-Appellees,

and

ANDRAYA YEARWOOD; THANIA EDWARDS, on behalf of her daughter, T.M.; COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES, Intervenor-Defendants-Appellees. *

* The Clerk of the Court is directed to amend the caption to conform to the above. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Before: CHIN, CARNEY, and ROBINSON, Circuit Judges.

Appeal from a judgment of the United States District Court for the

District of Connecticut (Chatigny, J.) dismissing claims against defendants-

appellees Connecticut Interscholastic Athletic Conference and its member high

schools under Title IX of the Education Amendments of 1972 challenging its

policy allowing transgender students to participate in gender specific sports

consistent with their gender identity. Plaintiffs-appellants are four cisgender

female students who allege that the policy disproportionally disadvantages

cisgender girls as compared to boys. The district court granted defendants-

appellees' motion to dismiss the challenge to the policy as not justiciable and the

claims for monetary relief as barred.

AFFIRMED.

ROGER G. BROOKS (John J. Bursch, Christiana M. Holcomb, and Cody S. Barnett, on the brief), Alliance Defending Freedom, Scottsdale, AZ, Washington, DC, and Ashburn, VA, for Plaintiffs- Appellants.

2 PETER J. MURPHY (Linda L. Yoder, on the brief), Shipman & Goodwin LLP, Hartford, CT, and Johanna G. Zelman, FordHarrison, LLP, Hartford, CT, and David S. Monastersky, Howd & Ludorf, LLC, Hartford, CT, and Michael E. Roberts, Commission on Human Rights and Opportunities, Hartford, CT, for Defendants- Appellees.

JOSHUA BLOCK (Lindsey Kaley, Galen Sherwin, Elana Bildner, and Dan Barrett, on the brief), ACLU Foundation, New York, NY, and ACLU Foundation of Connecticut, Hartford, CT, for Intervenor-Defendants-Appellees.

CHIN, Circuit Judge:

Since 2013, defendants-appellees, Connecticut Interscholastic

Athletic Conference (the "CIAC") and its member high schools (together,

"Defendants"), have followed the "Transgender Participation" Policy (the

"Policy"), which permits high school students to compete on gender specific

athletic teams consistent with their gender identity if that is different from "the

gender listed on their official birth certificates." CIAC By-Laws Article IX,

3 Section B. 1 Plaintiffs-appellants are four female athletes who are cisgender

("Plaintiffs"), and who attended CIAC member high schools and competed in

CIAC-sponsored girls' track events against female athletes who are transgender.

Plaintiffs allege that the Policy violates Title IX of the Education Amendments of

1972,

et seq. ("Title IX"), because the participation of transgender

females in girls' high school athletic events results in "students who are born

female" having materially fewer opportunities for victory, public recognition,

athletic scholarships, and future employment "than students who are born male."

J. App'x at 131 ¶ 4.

To remedy the alleged Title IX violations, Plaintiffs requested

damages and two injunctions -- one to enjoin future enforcement of the Policy

and one to alter the records of certain prior CIAC-sponsored girls' track events to

remove the records achieved by two transgender girls, who intervened in this

action. The district court dismissed the claims on grounds that (1) Plaintiffs'

request to enjoin future enforcement of the Policy was moot; (2) Plaintiffs lacked

standing to assert their claim for an injunction to change the record books; and

1 The CIAC's Handbook, which includes the Policy at Article IX, Section B of the By-Laws, can be found on the CIAC's website at http://www.casciac.org/ciachandbook. The Policy is available at page 54 of the Handbook.

4 (3) Plaintiffs' claims for monetary damages were barred under Pennhurst State

School & Hospital v. Halderman,

(1981). 2

Like the district court, we are unpersuaded, with respect to the claim

for an injunction to alter the records, that Plaintiffs have established the injury in

fact and redressability requirements for standing; both fail for reasons of

speculation. And because we conclude that the CIAC and its member schools

did not have adequate notice that the Policy violates Title IX -- indeed, they had

notice to the contrary -- Plaintiffs' claims for damages must be dismissed.

Accordingly, we AFFIRM the district court's dismissal of Plaintiffs'

claims against the CIAC and its member high schools.

STATEMENT OF THE CASE

The material facts alleged in Plaintiffs' second amended complaint

(the "Complaint") are assumed to be true, and all reasonable inferences are

drawn in their favor. See Donoghue v. Bulldog Invs. Gen. P'ship,

(2d Cir. 2012) (Rule 12(b)(1) motion to dismiss); Harris v. Mills,

(2d

Cir. 2009) (Rule 12(b)(6) motion to dismiss).

2 At oral argument, Plaintiffs conceded that their claim for prospective injunctive relief is moot because all Plaintiffs have graduated from high school and are no longer subject to the Policy. Thus, the dismissal of this claim as moot is affirmed.

5 I. The Facts

Plaintiffs Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, and

Selina Soule were -- at the time the Complaint was filed -- Connecticut high

school students who each ran track for their high school teams. Each was

competitive at the statewide level and trained hard to "shave mere fractions of

seconds off [their] race times." J. App'x at 130 ¶ 1. Plaintiffs allege that the Policy

forced them to compete against female athletes who are transgender, which

deprived them of a fair shot at statewide titles.

The CIAC has applied the Policy since the 2013-2014 school year,

permitting high school students to participate on gender specific sports teams

consistent with their gender identity. The Policy expresses a commitment "to

providing transgender student-athletes with equal opportunities to participate in

CIAC athletic programs consistent with their gender identity," and "conclude[s]

that it would be fundamentally unjust and contrary to applicable state and

federal law to preclude a student from participation on a gender specific sports

team that is consistent with the public gender identity of that student for all other

purposes." CIAC By-Laws Article IX, Section B. Thus, a student's eligibility to

participate on a CIAC gender specific sports team is based on "the gender

6 identification of that student in current school records and daily life activities in

the school and community," and the school district's "determin[ation] that the

expression of the student's gender identity is bona fide and not for the purpose of

gaining an unfair advantage in competitive athletics."

Pursuant to the Policy, intervenor-defendant-appellee Andraya

Yearwood participated on the girls' track team at Cromwell High School for the

2017, 2018, and 2019 indoor and outdoor seasons, and the 2020 indoor season.

Also pursuant to the Policy, intervenor-defendant-appellee Terry Miller

participated on the girls' track team at Bloomfield High School for the 2018

outdoor season, the 2019 indoor and outdoor seasons, and the 2020 indoor

season. During these track seasons, Yearwood and Miller, both girls who are

transgender, competed in CIAC-sponsored track events against girls who are

cisgender, including Plaintiffs -- Mitchell, Nicoletti, Smith, and Soule.

In certain races, Yearwood and Miller finished ahead of Plaintiffs.

For example:

Mitchell: In the 2019 Class S State Championship Women's Indoor

55-meter; the 2019 State Open Championship Women's Indoor 55-meter;

the 2019 Class S State Championship Women's Outdoor 100-meter; and the

7 2019 Class S State Championship Women's Outdoor 200-meter, Mitchell

either placed second after Miller, or third after both Miller and Yearwood.

Nicoletti: In the 2019 Class S State Championship Women's Outdoor

100-meter preliminary race, Miller took second place, Yearwood took

third, and Nicoletti took ninth.

Smith: In the 2019 State Open Championship Women's Outdoor

200-meter final, Miller placed first and Smith placed third.

Soule: In the 2019 State Open Championship Women's Indoor 55-

meter preliminary race, Miller, Yearwood, and Soule finished first, second,

and eighth, respectively.

In other races, Plaintiffs finished ahead of Yearwood and Miller. For

example, in the 2019 Class S State Championship Women’s Outdoor 100-meter

preliminary race, Mitchell, Miller, and Yearwood finished first, second, and

third, respectively.

II. The Proceedings Below

In February 2020, Plaintiffs brought this action against the CIAC and

its member high schools, alleging that the Policy "is now regularly resulting in

boys displacing girls in competitive track events in Connecticut"; "students who

8 are born female now have materially fewer opportunities to stand on the victory

podium, fewer opportunities to participate in post-season elite competition,

fewer opportunities for public recognition as champions, and a much smaller

chance of setting recognized records, than students who are born male"; and

"[t]his reality is discrimination against girls that directly violates the

requirements of Title IX." J. App'x at 131 ¶¶ 3-5.

Plaintiffs also alleged that the Policy has impacted their individual

achievements by depriving them -- as cisgender female athletes -- of certain state

championship titles and opportunities to advance to higher levels of statewide

competition. Specifically, Plaintiffs alleged that but for the Policy, Mitchell

would be the record holder of four additional state champion titles; Nicoletti

would have placed seventh in the 2019 Class S State Championship Women's

Outdoor 100-meter preliminary race, and advanced to the 100-meter final; Smith

would have placed second in the 2019 State Open Championship Women's

Outdoor 200-meter final; and Soule would have placed sixth in the 2019 State

Open Championship Women's Indoor 55-meter preliminary race, and advanced

to the 55-meter final.

9 Plaintiffs sought a declaration that the Policy violates Title IX by

"failing to provide competitive opportunities that effectively accommodate the

abilities of girls" and "equal treatment, benefits, and opportunities for girls in

athletic competition"; monetary relief for the alleged Title IX violations; an

injunction against future enforcement of the Policy; and an injunction requiring

the CIAC and its member schools "to remove male athletes from any

record . . . designated for girls or women" and "to remove times achieved by

athletes born male . . . from any records purporting to record times achieved by

girls or women." J. App'x at 175-76 (prayer for relief). Plaintiffs also moved for a

preliminary injunction to prevent transgender girls from competing in the then-

upcoming outdoor track season.

Before Plaintiffs' motion for a preliminary injunction could be heard,

the COVID-19 pandemic closed schools and nonessential businesses throughout

Connecticut, and all interscholastic athletic competition was suspended

indefinitely. The district court denied Plaintiffs' motion for expedited treatment

on April 8, 2020, concluding that Plaintiffs had no need for a preliminary

injunction when all spring track events had been cancelled due to the ongoing

pandemic.

10 On August 21, 2020, the CIAC and its member schools jointly moved

to dismiss the Complaint, asserting, inter alia, that Plaintiffs lacked standing to

seek injunctions enjoining future enforcement of the Policy and requiring

revisions to race records; Plaintiffs' requested relief would violate the rights of

Yearwood, Miller, and other transgender students protected by Title IX and the

Equal Protection Clause of the Fourteenth Amendment; Plaintiffs had not

plausibly alleged that competing against girls who are transgender violates Title

IX; and Plaintiffs' claims for monetary relief under Title IX were barred.

On April 25, 2021, the district court granted Defendants' motion to

dismiss on grounds that (1) Plaintiffs' request for injunctive relief against the

Policy became moot after Yearwood and Miller graduated in June 2020;

(2) Plaintiffs lacked standing to seek an injunction requiring corrections to past

athletic records because their theory of redressability was too speculative; and

(3) Plaintiffs' request for damages was barred because the CIAC did not receive

adequate notice that its Policy violated Title IX. See generally Soule v. Conn. Ass'n

of Schs., Inc., No. 20-CV-00201,

(D. Conn. Apr. 25, 2021). The

court thereafter entered judgment, dismissing the action.

This appeal followed.

11 DISCUSSION

We conclude that, first, Plaintiffs lack standing to seek an injunction

rewriting the records and, second, Plaintiffs' claims for monetary relief are barred

under Pennhurst. Accordingly, we affirm the district court's dismissal of the

Complaint.

I. Claims for Injunctive Relief

We review de novo the district court's dismissal of the claims for

injunctive relief pursuant to Rule 12(b)(1). See Conn. Parents Union v. Russell-

Tucker,

(2d Cir. 2021). "[A] plaintiff asserting standing must

'allege facts that affirmatively and plausibly suggest that [she] has standing to

sue' and courts 'need not credit a complaint's conclusory statements without

reference to its factual context.'"

(citation omitted).

To satisfy the constitutional requirement of standing, plaintiffs in

federal court bear the burden of establishing that (1) they have suffered an

"injury in fact -- an invasion of a legally protected interest which is (a) concrete

and particularized, and (b) actual or imminent, not conjectural or hypothetical";

(2) the injury is "fairly traceable to the challenged action of the defendant"; and

(3) it is "likely, as opposed to merely speculative, that the injury will be redressed

12 by a favorable decision." Lujan v. Defenders of Wildlife,

(1992)

(citations and internal quotation marks omitted). "A plaintiff seeking injunctive

or declaratory relief cannot rely on past injury to satisfy the injury requirement

but must show a likelihood that he or she will be injured in the future."

McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck,

, 284 (2d Cir.

2004) (citation omitted). The claimed future injury must be "certainly impending

to constitute injury in fact," and "allegations of possible future injury are not

sufficient." Clapper v. Amnesty Int'l USA,

(2013) (citation and

internal quotation marks omitted).

Here, Plaintiffs present two theories of standing. First, Plaintiffs

argue that the Policy deprived them of a "chance to be champions," and that

CIAC's current records perpetuate this past injury because "[w]hen records fail to

appropriately credit female achievements, athletes like Plaintiffs feel 'erased.'"

Appellants' Br. at 18-19. Second, Plaintiffs argue that the current records affect

Plaintiffs' future employment opportunities, and that correcting the records

13 would redress this harm. 3 We conclude that both theories of standing fail to

establish injury in fact and redressability.

A. A Chance to be Champions

Plaintiffs' theory of injury in fact -- that the Policy deprived them of

a "chance to be champions" -- fails because they have not alleged a cognizable

deprivation here. All four Plaintiffs regularly competed at state track

championships as high school athletes, where Plaintiffs had the opportunity to

compete for state titles in different events. And, on numerous occasions,

Plaintiffs were indeed "champions," finishing first in various events, even

sometimes when competing against Yearwood and Miller. See, e.g., J. App'x at

157 ¶ 100 (Mitchell defeated Yearwood and Miller in 2019 Class S Women's

Outdoor 100-meter); Suppl. App'x at 54-55 (Soule placed first in long jump and

4x200 relay at 2019 state championships). Plaintiffs simply have not been

deprived of a "chance to be champions."

3 Plaintiffs also alleged in their Complaint that maintaining the current records affects their college recruitment and scholarship opportunities. This claim, however, is now moot because all Plaintiffs have graduated from high school, have matriculated at undergraduate institutions, and are competing on collegiate track-and-field teams; it would be impossible, at this point, for an injunction correcting the records to grant Plaintiffs improved college recruitment opportunities. See Knox v. Serv. Emps. Int'l Union, Loc. 1000,

(2012) ("A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." (citation and internal quotation marks omitted)).

14 We do not hold that the deprivation of a "chance to be champions"

can never be "an invasion of a legally protected interest," sufficient for injury in

fact. Lujan,

. Indeed, in McCormick, a case which Plaintiffs rely on,

we found that female athletes suffered this deprivation, in violation of Title IX,

when the school district scheduled girls' soccer in the Spring and boys' soccer in

the Fall, because participation in state championships for soccer was available

only to teams scheduled in the Fall. See McCormick, 370 F.3d at 295-96.

But the injury suffered by the female athletes in McCormick is easily

distinguishable from Plaintiffs' circumstances here. In McCormick, the school

district's scheduling decision afforded male athletes, and simultaneously

deprived female athletes of, the opportunity to compete at state championships --

the "chance to be champions." Id. at 295 ("The scheduling of soccer in the spring,

therefore, places a ceiling on the possible achievement of the female soccer

players that they cannot break through no matter how hard they strive. The boys

are subject to no such ceiling."). Here, the Policy did not deprive Plaintiffs of the

opportunity to compete at state championships.

Even assuming Plaintiffs could show injury in fact, the independent

constitutional requirement of redressability remains unsatisfied. It is not

15 apparent that an injunction to rewrite the records would redress Plaintiffs'

alleged deprivation -- revising the records would not give Plaintiffs "a chance to

be champions." Plaintiffs' injury of being deprived of a "chance to be champions"

could be remedied only with damages for past deprivation, or with an injunction

requiring do-overs of the races. But the former, as explained below, are

unavailable to Plaintiffs, and Plaintiffs do not seek the latter. Indeed, the races

were run in conformity with the rules in effect at the time; times were recorded;

medals for gold, silver and bronze were in fact awarded to athletes who finished

first, second, and third; and the records accurately reflect those results. Plaintiffs

have not shown that there is a proper legal framework for invalidating or

altering records achieved by student-athletes who competed in conformity with

the applicable rules. This mismatch between Plaintiffs' alleged injury and

requested relief is fatal to establishing redressability. See Steel Co. v. Citizens for a

Better Env't,

(1998) ("Relief that does not remedy the injury

suffered cannot bootstrap a plaintiff into federal court; that is the very essence of

the redressability requirement.").

Plaintiffs argue that an injunction changing the records would

remedy the fact that Plaintiffs feel "erased" by the current records, because the

16 injunction would give Plaintiffs additional public recognition for their athletic

achievements and hard work. Appellants' Br. at 19-20. But absent a proper

means to alter the records, a ruling from this Court would give Plaintiffs nothing

more than "psychic satisfaction," which, on its own, "is not an acceptable Article

III remedy because it does not redress a cognizable Article III injury." Steel,

; accord Kapur v. Fed. Commc'ns Comm'n,

(D.C. Cir.

2021) ("The 'psychic satisfaction' of winning doesn't cut it."); I.L. v. Alabama,

(11th Cir. 2014) ("[G]ranting the plaintiffs the relief they request

would result in nothing more than a mere 'moral' victory, something the federal

courts may not properly provide."); Doyle v. Town of Litchfield,

(D. Conn. 2005) ("[S]ome emotional or mental satisfaction . . . is

inadequate to confer standing, no matter how worthy the cause.").

Thus, Plaintiffs' first theory of standing -- that the Policy deprived

them of a "chance to be champions" -- fails to establish both injury in fact and

redressability.

B. Prospects at Future Employment

Next, Plaintiffs argue that the records "could . . . affect all four

Plaintiffs' prospects at future employment." Appellants' Br. at 20 (emphasis

17 added). "[A]llegations of possible future injury," however, are insufficient to

satisfy injury in fact. Clapper,

. To support the argument that

Plaintiffs' future employment opportunities are harmed by maintaining the

records as is, Plaintiffs assert that "[o]ur society places a high value on athletic

achievements," 94% of female business executives "participated and recorded

achievements in interscholastic sports," and most employers will likely "consider

Plaintiffs more favorably in light of their achievements." Appellants' Br. at 21-22.

It is true that employers often find candidates with athletic

experience more appealing. Indeed, some employers (including federal judges

perhaps) may favor candidates for employment who competed on collegiate

athletic teams for the very reason that athletic experience speaks loudly about the

candidate's discipline, time-management skills, patience, and ability to

collaborate. But the records that Plaintiffs want re-written already show their

participation and impressive achievements in high school athletics; the mere fact

that athletic experience may be a significant factor for prospective employers in

their hiring decisions does not show that Plaintiffs' future employment

opportunities are harmed by the current records.

18 Moreover, because "[a]n employer is entitled to arrive at a subjective

evaluation of a candidate's suitability for a position," Byrnie v. Town of Cromwell,

Bd. of Educ.,

(2d Cir. 2001), superseded in part on other grounds by

Fed. R. Civ. P. 37(e), Plaintiffs can only speculate as to how prospective

employers will exercise their discretion when hiring and whether the requested

revisions to the records would have any noticeable impact. This speculation is

insufficient to show injury in fact. See Clapper,

(concluding that

plaintiffs' claim of future injury was not "certainly impending" where harm to

plaintiffs depended on the discretion of government officials and plaintiffs could

only speculate as to how they would exercise their discretion). Thus, Plaintiffs

have failed to show injury in fact because they have not established that

maintaining the records as they are now will cause future injury to Plaintiffs'

employment opportunities that is "certainly impending."

Nor have Plaintiffs established redressability. Plaintiffs argue that

athletic achievements highlight valuable skill sets to employers and can

distinguish Plaintiffs from other applicants. But even conceding that some

athletic achievements can impact one's opportunities for employment, Plaintiffs

have only speculated that changing the records -- so that (1) Mitchell finishes first

19 instead of second in four championship races, (2) Smith finishes second instead

of third in one championship race, and (3) Soule and Nicoletti both advance to

the next level of competition in their respective events -- would change a

prospective employer's decision to hire any one of them. The reality is that an

injunction requiring changes to the records would not bind any prospective

employers who consider hiring Plaintiffs because they are not before the court,

and thus a favorable decision for Plaintiffs is not likely to change their future

employment prospects or outcomes. See Lujan,

(holding no injury

and redressability where their "existence . . . depends on the unfettered choices

made by independent actors not before the courts and whose exercise of broad

and legitimate discretion the courts cannot presume either to control or to

predict" (citation omitted)). And, as the district court noted, even if the records

were amended, Plaintiffs have not shown that their employment prospects are

likely to be any different, given that a simple internet search would reveal to the

prospective employer this controversy about the records. See Soule,

, at *7. Thus, because Plaintiffs have failed to plausibly allege that an

injunction requiring changes to the records is likely to change their employment

opportunities, Plaintiffs have failed to meet their burden on redressability.

20 To be clear, we do not decide now whether a court can ever award

an injunction to rewrite records. As the parties to this appeal emphasized at

argument, the accuracy of records are significant, "inaccurate" records can cause

real injury to athletes, and the question of accuracy can go beyond identifying

who had the fastest time, who jumped the farthest, or who hit the most home

runs. 4 Even so, not every harm is an injury that can be redressed in an Article III

court -- the requirements of standing must be satisfied, and Plaintiffs have failed

to do so here.

4 Controversies over athletic records are not uncommon. Around the time of argument in this case, the controversy over who holds the single-season home run record in Major League Baseball ("MLB") was reignited when New York Yankee Aaron Judge beat Roger Maris's record by hitting his sixty-second home run that season. See Jack Vita, WATCH: Aaron Judge Hits 62nd Home Run Passing Roger Maris' AL HR Record, Sports Illustrated (Oct. 4, 2022), https://www.si.com/fannation/mlb/fastball/news/watch-aaron-judge-hits-62nd-home-run- passing-roger-maris-al-hr-record. Before Judge, Barry Bonds, Mark McGwire, and Sammy Sosa each had surpassed Maris's sixty-one home runs. But their season records, set in MLB's infamous "steroid era," carry the stain of performance-enhancing drugs. See Mike Gavin, Aaron Judge Hits 61st Home Run to Tie Roger Maris' Record, NBC Sports (Sept. 28, 2022), https://www.nbcsports.com/philadelphia/phillies/aaron-judge-hits-61st-home-run-tie-roger- maris-record. Some, including Judge, say Bonds's seventy-three home run record is the one to beat, because seventy-three is the most home runs hit in a single MLB season. See Joseph Salvador, Aaron Judge Recently Said Barry Bonds's 73 Home Runs Is True Record, Sports Illustrated (Sept. 29, 2022), https://www.si.com/mlb/2022/09/29/aaron-judge-barry-bonds-73-home-runs- true-record. Others maintain that Babe Ruth still holds the record, because Ruth's sixty home runs in a 154-game season is more impressive than the records set in 162-game seasons by Maris, Bonds, McGwire, Sosa and Judge. See Gavin, supra. All this is to say the debate over who holds the record, whether aided by more games or abetted by banned substances, persists to this day, among MLB fans and athletes, on the internet, and in the ballparks -- but it, like this controversy, is not a debate for the courtroom.

21 II. Claims for Damages

We review de novo a district court's grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim upon which relief can be granted. See Simmons

v. Roundup Funding, LLC,

(2d Cir. 2010).

A. Applicable Law

Title IX broadly prohibits education programs that receive federal

funding from discriminating "on the basis of sex."

(a) ("No

person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal financial

assistance . . . ."). The Supreme Court has recognized an implied private right of

action under Title IX, Cannon v. Univ. of Chicago,

(1979), and has

held that monetary relief is available in such suits, Franklin v. Gwinnett Cnty. Pub.

Sch.,

(1992).

Because Congress enacted Title IX pursuant to its authority under

the Spending Clause, however, private damages actions under Title IX "are

available only where recipients of federal funding had adequate notice that they

could be liable for the conduct at issue." Davis Next Friend LaShonda D. v. Monroe

22 Cnty. Bd. of Educ.,

(1999) ("When Congress acts pursuant to its

spending power, it generates legislation 'much in the nature of a contract: in

return for federal funds, the States agree to comply with federally imposed

conditions.'" (citation omitted)); see also Pennhurst,

("There can, of

course, be no knowing acceptance if a State is unaware of the conditions

[imposed by Congress's Spending Clause legislation] or is unable to ascertain

what is expected of it."). To determine whether a funding recipient is on notice

that its conduct "falls within the scope of Title IX's proscriptions," Davis,

, we look to guidance promulgated by the agency responsible for Title IX's

enforcement, the Department of Education's Office of Civil Rights ("OCR"), see

Biediger v. Quinnipiac Univ.,

(2d Cir. 2012), and to relevant

decisions from the Courts of Appeals, see Jackson v. Birmingham Bd. of Educ.,

(2005).

There is one recognized exception to Pennhurst's notice requirement:

"Pennhurst does not bar a private damages action under Title IX where the

funding recipient engages in intentional conduct that violates the clear terms of

the statute." Davis,

.

23 B. Application

There is no dispute here that the CIAC and its member schools are

recipients of federal education funding for Title IX purposes. Thus, unless the

exception set forth in Davis were to apply, Plaintiffs' suit for private damages

may proceed only if Pennhurst's notice requirement is satisfied -- i.e., if it is

shown that the CIAC and its member schools had adequate notice that they

could be liable under Title IX as a result of the Policy. We conclude that only the

opposite has been shown here.

Looking first to guidance promulgated since the Policy's adoption in

2013, OCR's position on transgender students' participation in athletics has

fluctuated with the changes in presidential administrations in 2016 and 2020. 5

But even when promulgating and rescinding its guidance, OCR never clearly

provided that allowing transgender students to participate on athletic teams

5 In 2017, OCR rescinded its guidance from 2016 -- which stated that transgender students must be allowed to participate in activities consistent with their gender identity, see Letter from Catherine E. Lhamon, Ass't Sec'y for Civil Rights, U.S. Dep't of Educ., and Vanita Gupta, Principal Dep. Ass't Att'y Gen. for Civil Rights, U.S. Dep't of Justice (May 13, 2016), -- on grounds that the legal issues implicated in the 2016 guidance needed to be considered "more completely," Letter from Sandra Battle, Acting Ass't Sec'y for Civil Rights, U.S. Dep't of Educ., and T.E. Wheeler, II, Acting Ass't Att'y Gen. for Civil Rights, U.S. Dep't of Justice (Feb. 22, 2017). Similarly, in August 2020, OCR sent the CIAC a Revised Letter of Impending Enforcement Action, stating that OCR interpreted Title IX to require that gender specific sports teams be separated based on biological sex, but OCR withdrew this letter in February 2021, stating that it should "not be relied upon in this or any other matter." See ECF Nos. 172-1, 154-2.

24 consistent with their gender identity violates Title IX. Cf. Jackson,

(finding adequate notice where "regulations implementing Title IX clearly

prohibit retaliation and have been on the books for nearly 30 years").

Next, the Supreme Court's recent decision in Bostock v. Clayton

County, Georgia,

(2020), interpreting Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the decisions of our sister circuits

interpreting Title IX strongly support the conclusion that the CIAC and its

member schools lacked notice that a policy such as that at issue here violates

Title IX.

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,

, and the Court has "looked to its Title VII

interpretations of discrimination in illuminating Title IX," Olmstead v. L.C. ex rel.

Zimring,

, 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."

(a). Thus, it cannot be said that the Policy -- which

prohibits discrimination based on a student's transgender status by allowing all

25 students to participate on gender specific teams consistent with their gender

identity -- "falls within the scope of Title IX's proscriptions."

Moreover, the Courts of Appeals considering whether Title IX

prohibits schools from treating transgender students consistent with their gender

identity have held that the statute does not. See Parents for Priv. v. Barr,

(9th Cir. 2020), cert. denied,

(2020) (concluding that school

district's plan allowing transgender students to use bathrooms consistent with

their gender identity does not discriminate on the basis of sex in violation of Title

IX because the plan treats all students equally, regardless of their sex); Doe by &

through Doe v. Boyertown Area Sch. Dist.,

(3d Cir. 2018), cert.

denied,

(2019) ("The School District's policy allows all students to

use bathrooms and locker rooms that align with their gender identity. It does

not discriminate based on sex, and therefore does not offend Title IX.").

Some Courts of Appeals have taken it further and held that treating

transgender students consistent with their sex assigned at birth -- as the CIAC

and its member schools would be doing if the Policy were terminated -- violates

Title IX. See Grimm v. Gloucester Cnty. Sch. Bd.,

, 619 (4th Cir. 2020), as

amended (Aug. 28, 2020), cert. denied,

(2021) (holding that school

26 board's policy requiring students to use bathrooms based on biological sex

unlawfully discriminated against transgender student in violation of Title IX);

Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,

(7th Cir. 2017)("A policy that requires an individual to use a bathroom that

does not conform with his or her gender identity punishes that individual for his

or her gender non-conformance, which in turn violates Title IX."); see also Dodds

v. U.S. Dep't of Educ.,

(6th Cir. 2016). Although these cases from

our sister circuits do not address the exact issue of participation of transgender

athletes on gender specific sports teams, such authority nonetheless establishes

that discrimination based on transgender status is generally prohibited under

federal law, and further supports the conclusion that the CIAC and its member

schools lacked clear notice that the Policy violates Title IX.

Invoking Davis, Plaintiffs argue that their suit for private damages

may proceed even if there was no clear notice that the Policy violates Title IX

because the CIAC and its member schools, through the Policy, intentionally

discriminated against cisgender female athletes. We are not persuaded.

This "intentional conduct" exception to Pennhurst's notice

requirement has been applied only in cases where the funding recipient is

27 deliberately indifferent to known acts of retaliation or sexual harassment in

violation of Title IX. See, e.g., Jackson,

("Retaliation against a

person because [they] complained of sex discrimination is [a] form of intentional

sex discrimination encompassed by Title IX's private cause of action."); Davis,

(concluding that federal funding recipients may be liable for

private damages under Title IX "where the recipient is deliberately indifferent to

known acts of student-on-student sexual harassment"); Gebser v. Lago Vista Indep.

Sch. Dist.,

(1998) (concluding the same where deliberate

indifference is to known teacher-on-student sexual harassment); Franklin,

(same). Plaintiffs have presented no persuasive arguments as to

why the exception should also apply in this case, where the alleged Title IX

violation is a facially neutral policy, and not a failure to respond to known

instances of discriminatory conduct that clearly violates Title IX. See Horner v.

Kentucky High Sch. Athletic Ass'n,

(6th Cir. 2000) (explaining that

Franklin, Gebser, and Davis "all address deliberate indifference to sexual

harassment, and are not readily analogous" to cases alleging sex discrimination

with respect to facially neutral athletic opportunities). And even if this exception

to the notice requirement is extended to cases involving claims of discrimination

28 in athletics, the Policy could not be considered "intentional conduct that violates

the clear terms of [Title IX]," Davis,

, given Bostock and the

decisions from other Courts of Appeals. Thus, the "intentional conduct"

exception is inapplicable here.

Accordingly, we conclude that Plaintiffs' claims for money damages

are barred.

CONCLUSION

For the reasons stated above, we AFFIRM the district court's

judgment dismissing the Complaint.

29