On May 15, 2020, the U.S. Department of Education’s Office for Civil Rights issued a Letter of Impending Enforcement Action (“Letter”) against the Connecticut Interscholastic Athletic Conference (“CIAC”) and several Connecticut public school districts.  At issue was the CIAC’s policy permitting biologically‑male transgender student‑athletes to participate in athletic competitions with biologically‑female student‑athletes.  The subject policy was premised on recognizing gender identity, i.e. students were allowed to compete against those of the gender with which they identified.  In the matter addressed by OCR, two biologically‑male transgender students (identifying as female), referenced as “Student A” and “Student B,” were permitted to participate in girls’ track competitions against biologically‑female student‑athletes.

OCR determined that, through their sports participation policy, CIAC and the school districts committed violations of Title IX that “resulted in the loss of athletic benefits and opportunities for female student‑athletes.”  OCR reasoned that the CIAC’s policy “denied female student‑athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits,” while those benefits and opportunities remained available to male student‑athletes.  Additionally, OCR wrote that it “also has concerns that additional violations may have resulted” from the policy and from the participation of Student A and Student B in girls’ track, “including but not limited to losses or lowered placement in regular season meets; losses or lowered placement in conference championships; and an inability for some female student‑athletes to participate generally in a race at any level (not just championship level).”  In support of these conclusions, OCR noted the placement of Student A and Student B in all-female competitions – which was consistently near or at the top of the leader board.

In February 2020, OCR notified the CIAC and school districts of its findings.  However, after further discussions, the CIAC and school districts were unable to reach an agreement with OCR to resolve the matter.  In its Letter, OCR indicated it will “either initiate administrative proceedings to suspend, terminate, or refuse to grant or continue and defer financial assistance to the CIAC” and school districts, or will refer the cases to the Department of Justice for further judicial proceedings.  In other words, CIAC and the school districts face a loss of federal funding because of their actions consistent with the transgender sports participation policy.            

OCR’s Letter, which may be accessed HERE, is guaranteed to be a divisive development in the landscape of Title IX rights and transgender student‑athletes.  With transgender rights currently at the forefront elsewhere – the United States Supreme Court, Idaho, etc. – the final chapter on transgender student rights has not yet been written.