The Second Circuit U.S. Court of Appeals announced on Monday that it will rehear Soule v. Connecticut en banc, or by the full court, following a decision by a three-judge panel of the court in December to dismiss the athletes’ claims that biological males should be banned from women’s sports.
The case arises from Connecticut’s policy of allowing of biological males who identify as female to compete in women’s sports. The plaintiffs argue that the biological males have an unfair physical advantage.
Most athletic governing bodies require that males who identify as female take testosterone-suppressing hormones for at least one year before competing, a policy which many claim still does not eliminate the advantage males have. Connecticut, however, does not require testosterone suppressing, meaning the biologically male athletes are able to compete without any effort to lessen their physical advantage when competing.
In 2017, Andraya Yearwood and Terry Miller, who were born male, began competing as females, winning 15 state championships in track and field. In three years, the transgender athletes broke 17 girls’ track meet records.
The plaintiffs, Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti, claim that they lost opportunities to advance to next-level competitions, placements, and championships to the male athletes.
In early 2021, District Court Judge Robert Chatigny dismissed the case, claiming that because Yearwood and Miller had graduated, no dispute remained. He also denied the plaintiffs’ request to remove Yearwood and Miller from the record books.
The female athletes, represented by Alliance Defending Freedom, a legal organization that represents clients in cases relating to religious freedom, free speech, and parental rights, appealed. The three-judge panel of the Second Circuit affirmed Chatigny’s ruling last year.
In a surprise, though, the Second Circuit court announced yesterday,
“A poll having been conducted and a majority of the active judges of the Court having voted in favor of rehearing this appeal en banc, IT IS HEREBY ORDERED that this appeal be heard en banc.”
In a statement, Christiana Kiefer, senior counsel for ADF, reacted to the news by saying,
“Selina, Chelsea, Alanna, and Ashley—like all female athletes—deserve access to fair competition. We’re pleased the 2nd Circuit has decided to rehear this important case, and we urge the court to protect women’s athletic opportunities. Eighteen states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports. Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics, and ADF remains committed to protecting the future of women’s sports.”
One of the more disturbing trends in our modern society is how quickly judges have adopted the radical gender orthodoxy and its language standards. Judges are supposed to be impartial, clear-eyed, sober-minded, and have the capacity for independent thought, in addition to fairly applying the law as written.
In their decision, the three-judge panel of the Second Circuit always referred to Mitchell, Smith, Nicoletti, and Soule as “cisgender female athletes” and “girls who are cisgender,” while referring to the male athletes as “girls who are transgender” and “female athletes who are transgender.”
To quote former collegiate women’s swimmer Riley Gaines, “We should not have to add the term ‘biological’ in front of the word women to address differences in performance and our separate categories.”
The judges’ use of the phrase “female athletes who are transgender” is nonsensical. Female is the biological designation given to humans who do not have a Y chromosome. And Title IX was passed specifically to give females the equal opportunity to compete in sports against other females, not biological men.
Not only did the three judges accept the transgender athletes as “females,” but their ruling failed to even consider the biological advantages the transgender athletes had over the biologically female athletes. The judges denied that the transgender athletes’ participation took away the “chance to be champions” for the female athletes. They even used the fact that Mitchell once, and Soule once individually and once in a relay, beat Yearwood and Miller as a reason why they were not deprived a chance at fair competition.
The fact that Mitchell and Soule defeated Yearwood and Miller one time each does not mean Miller and Yearwood had no unfair advantage; it means that Mitchell and Soule achieved an incredible accomplishment, defeating opponents who had an obvious physical advantage. Their Herculean effort should not be used as a reason to discount their hardship.
By acting as though males who identify as females are no different than actual females, these judges have done a disservice to female athletes and to the law they are sworn to uphold.
Psalm 106:3 says,
“How blessed are those who keep justice,
Who practice righteousness at all times!”
The full court has made a righteous decision in deciding to re-hear the case. Americans can hope that a just decision will be handed down so that future girls won’t have to compete against boys and have to suffer the way that Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti have.
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