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Federal appeals court to reconsider Connecticut’s policy allowing transgender athletes to compete in sports


From left, attorney Christiana Kiefer and plaintiffs Alanna Smith, Selina Soule and Chelsea Mitchell are outside federal court in lower Manhattan in New York City on Thursday, September 29, 2022 (AP/Ted Shaffrey).

A conservative advocacy group seeking to ban transgender students from competing in sports consistent with their gender identities scored a win Monday when a federal appellate court agreed to reconsider its lawsuit challenging Connecticut’s inclusive transgender policy.

The Second Circuit Court of Appeals granted en banc review in a case in which former student-athletes said Connecticut wrongly deprived them of their “chance to be champions” by allowing transgender girls to compete against them.

Four former student-athletes — Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, and Selina Soule — filed Title IX claims and argued that their transgender competitors Andraya Yearwood and Terry Miller had an unfair advantage from being assigned male at birth.

Representing the plaintiff athletes is the Alliance Defending Freedom (ADF), a group that identifies itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.”

ADF made headlines Monday following Super Bowl LVII for its connection to a $20 million ad campaign known as “He Gets Us.” The ads featured Sunday were a series of black and white video spots run by the Servant Foundation, a Kansas-based charity that says it “exists to inspire and facilitate revolutionary, biblical generosity.” According to reports supported by the group’s tax documents, the Servant Foundation has donated tens of millions of dollars to ADF to fund its legal work.

The “He Gets Us” campaign portrays Jesus as an immigrant, a refugee, a radical, a women’s rights activist, and a force against racial injustice.  That messaging, though, is directly at odds with ADF’s commitment to right-wing causes.

ADF has been at the forefront of conservative legal victories including challenges to covid vaccine mandates, support of conversion therapy, the right of businesses to discriminate against LGBTQ patrons, and the eradication of abortion rights following the overruling of Roe v. Wade. ADF is categorized as a hate group by the Southern Poverty Law Center (SPLC) for its fight against LGBTQ rights, arguing that since Donald Trump was elected president it has become “one of the most influential groups informing the administration’s attack on LGBTQ rights.”

Jeremy D. Tedesco, Senior Counsel of ADF, has provided the following additional statement in response to the Southern Poverty Law Center’s characterization of their organization as a hate group: “The Southern Poverty Law Center is a thoroughly discredited, blatantly partisan activist organization with zero moral authority. The truth is, Alliance Defending Freedom is among the largest and most effective legal advocacy organizations dedicated to protecting the religious freedom and free speech rights of all Americans. Our record includes 14 Supreme Court victories since 2011 and over 400 victories protecting the free speech rights of students on college campuses.”

One of ADF’s ongoing projects is its fight against the protection of transgender girls’ right to compete in girls’ sports.

“Unjust policies allowing males to compete in women’s athletic programs must not go unchallenged,” ADF says on its website. “Left unchecked, these flawed policies would spell the end of female athletics.”

ADF raised its challenge to Connecticut’s transgender policies and in December 2022, a unanimous panel of the appellate court rejected the case.

In the ruling, Senior U.S. Circuit Judge Denny Chin, a Barack Obama appointee, wrote for the panel and found that all four plaintiffs “regularly competed at state track championships as high school athletes,” sought state titles in various events, and “were indeed ‘champions.'” Chin noted that the plaintiffs sometimes finished first in various events, including events in which they defeated the very transgender students blamed in the lawsuit for foreclosing their chance to compete.

U.S. Circuit Judges Susan Carney, also an Obama appointee, and Beth Robinson, a Joe Biden appointee, joined the decision.

The panel not only disagreed with the substance of the plaintiffs’ case, but also with its timing. The court ruled that the claim was moot because all the plaintiffs already graduated from high school and were currently competing on collegiate track-and-field teams. The panel found that even if the plaintiffs had raised a cognizable claim, “it would be impossible, at this point, for an injunction correcting the records to grant Plaintiffs improved college recruitment opportunities.”

ADF Senior Counsel Christiana Kiefer said in a statement Monday that the organization was pleased that the Second Circuit decided to rehear the case, and that “Selina, Chelsea, Alanna, and Ashley—like all female athletes—deserve access to fair competition.”

Kiefer referenced the 18 states that have enacted laws “that protect women and girls from having to compete against males,” and pointed to a Fox News poll as proof that “a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports.”

Idaho, Utah, Arizona, Texas, Oklahoma, Arkansas, Louisiana, Missouri, Florida, Alabama, Mississippi, Montana, Tennessee, Kentucky, Indiana, South Carolina, Iowa, South Dakota, and West Virginia have all enacted bills that ban transgender athletes from competing in sports consistent with their gender identities.

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In Kiefer’s statement, she refers to transgender girls Andraya Yearwood and Terry Miller as “two males” who “broke 17 girls’ track meet records, deprived girls of more than 85 opportunities to advance to the next level of competition and took 15 women’s state track championship titles.”

According to Kiefer, “Four of those championship titles were earned by ADF’s client, Chelsea Mitchell,” but that Mitchell, “watched that title, honor, and recognition go to a male athlete instead.”

ADF’s case against Connecticut’s transgender athlete policy will now proceed before the full Second Circuit.

Editor’s note: This article has been updated to include a statement from the ADF in response to the Southern Poverty Law Center’s characterization of their organization as a hate group

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos