When the U.S. Supreme Court concluded that states can bar biological males from competing in women’s sports, it left unanswered the other side of the question: Can states permit it?

The question is pointed directly at Connecticut or, more particularly, at a case referred to as Soule that has percolated in Connecticut’s federal district court for six years. The Supreme Court acknowledged as much in the first footnote in its late June decision.

The cases on which it based its opinion, the court said in the footnote, “do not present the distinct question of whether (under federal law) schools may allow biological males who identify as female to participate on girls’ and women’s sports teams.”

“That question is currently the subject of litigation in some lower courts,” the court said. “Nothing in this opinion is intended to decide that question.”

Selina Soule is one of four female high school track athletes who sued the Connecticut Interscholastic Athletic Conference and four local school boards in 2020 to reverse policies that allow biological males who identify as female to compete in women’s high school sports. It is the mirror image of the question raised in the two cases on which the high court ruled on June 30 – cases referred to as B.P.J from West Virginia and Hecox from Idaho.

Soule, like related cases pending elsewhere in the lower courts, was put on hold while the parties waited to see whether the Supreme Court decision in B.P.J and Hecox delivered a resolution. With the court explicitly avoiding the issue of allowing transgender female competition, the lower court litigation resumes and one or more could eventually reach the high court.

“Obviously I cannot predict the future, but Soule could be next up,” said attorney Michael Roberts, a partner in a West Hartford civil rights practice and formerly a party to Soule as an attorney with the Commission of Human Rights and Opportunities. “At one point, Soule and Hecox were were running in parallel.”

At the center of the Soule litigation – and to a lesser extent, B.P.J. and Hecox – is Title IX, a transformative civil rights law enacted by Congress in 1972 to guarantee equal athletic opportunities to female student athletes.

To do so, the law permits schools to create separate men’s and women’s teams in sports where differences in physiology can provide an advantage. In cases where a school provides separate teams, it must do so in a manner that “provides equal athletic opportunity for members of both sexes.”

Title IX created an explosion of female athletic participation.

Prior to enactment, about 300,000 high school girls played sports, compared to about 3.6 million high school boys. The same imbalance existed at the college level. Last year, about 3.5 million high school girls played sports and another 235,000 competed in college, according to figures from state and collegiate athletic associations.

The complaint in Soule is that women lose opportunities to compete fairly when their places are taken by biological men who identify as woman. The suit challenges a policy enacted by the Connecticut Interscholastic Athletic Conference in 2013 that allows transgender students to play on sex-separated sports teams based on their gender identification in current school records and daily life activities in the school.

The four women bringing the suit, who competed at a high level in high school sports when the suit was filed, claim that two biological men who identify as woman repeatedly out-performed them in championship level events that might have created scholarship opportunities.

“In the state of Connecticut, students who are born female 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,” the suit says.

The towns and the CIAC contend in their defense that the two transgender athletes named in the suit are, in fact, females and, as a result, it would be a violation of Title IX not to allow them to participate in women’s athletics.

The defendants in the suit also have argued for its dismissal on procedural rather than substantive grounds. The towns and the CIAC contend that, since the transgender athletes who competed against the girls have graduated from high school, there is not longer an issue in dispute.

U.S. District Judge Robert N. Chatigny ruled for the defendants on the procedural claims. He dismissed the suit in April 2021, concluding principally that the dispute had become moot when the transgender women whose participation in women’s sports the plaintiffs were challenging had graduated from high school.

The U.S. 2nd Circuit Court of Appeals reversed Chatigny and reinstated the suit in January 2024. Eleven months later, Chatigny ruled against another motion to dismiss, writing that both sides had credible claims for protection under Title IX.

“This case presents a direct conflict between two interests protected by Title IX: the interest in providing fair competition for biological females, which has long been recognized as a significant governmental interest under Title IX, and the interest in providing transgender girls with opportunities to participate in girls’ sports, which is now protected by a Connecticut state statute,” Chatigny wrote.

A year ago, the case was transferred to U.S. District Judge Sarala V. Nagala. In addition to delays caused by the pendency of the Supreme Court case, it has bogged down in disagreements between the parties over disclosures concerning expert witnesses and other types of evidence.

Although the U.S. Supreme Court in B.P.J and Hecox avoided the question at the center of Soule, the decision written by Justice Brett Kavanaugh contained language the plaintiffs might find heartening.

On the definition of sex, the court wrote: “The term ‘sex’ (as used in Title IX) cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context.”

The court said “allowing biological males to play on women’s and girls’ sports teams can put women and girls at significant risk of injuries.”

“And as to competitive fairness, allowing biological males to play on women’s and girls’ sports teams can put female athletes at a serious disadvantage,” the court said. “That is because sports are generally zero sum. Allowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal, and the like. That hard reality of sports cannot be ignored or swept under the rug.”

Last week, Republicans in the state House of Representatives applauded the Supreme Court decision and reminded everyone at a Capitol press conference that the issue of male and female sports competition is not going away quietly.

State Rep Tracy Marra, R- Darien, said the House Republicans have failed twice in efforts to legislate a ban on biological male participation in women’s sports but will continue to press an issue that some polls show has support of as many as 70% of Americans

“Our schools need to insist that it is females playing in women’s sports,” Marra said. “It is a very easy concept. Fairness is not hate. Truth is not discrimination. We need to protect our girls. We are happy that we have a court case a that is so far along in the process. We are hoping that it gets elevated to the Supreme Court level.”

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