Soule Ex Rel. Stanescu v. Connecticut Association of Schools, Inc.

90 F.4th 34

• Court: Court of Appeals for the Second Circuit
• Decided: December 15, 2023
• Docket: 21-1365
• Status: Published

Opinion

21-1365 (en banc) Soule ex rel. Stanescu v. Connecticut Association of Schools, Inc.

United States Court of Appeals For the Second Circuit

August Term 2022

Argued en banc: June 6, 2023 Decided: December 15, 2023

No. 21-1365

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,

ANDRAYA YEARWOOD; THANIA EDWARDS, ON BEHALF OF HER DAUGHTER, T.M.; COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES,

Intervenor-Defendants-Appellees. Appeal from the United States District Court for the District of Connecticut No. 20-cv-201, Robert N. Chatigny, Judge.

Before: LIVINGSTON, Chief Judge, CHIN, LOHIER, CARNEY, SULLIVAN, BIANCO, PARK, NARDINI, MENASHI, LEE, ROBINSON, PÉREZ, NATHAN, MERRIAM, and KAHN, Circuit Judges. *

NATHAN, J., filed the majority opinion in which LIVINGSTON, C.J., SULLIVAN, BIANCO, PARK, NARDINI, and MENASHI, JJ., joined in full, LOHIER and ROBINSON, JJ., joined as to Part I, LEE and PÉREZ, JJ., joined as to Parts I.A, I.B.1, and II, and MERRIAM, J., joined as to Part II.

PARK, J., filed a concurring opinion in which NARDINI and MENASHI, JJ., joined.

MENASHI, J., filed a concurring opinion in which PARK, J., joined.

NATHAN, J., filed a concurring opinion in which ROBINSON, J., joined.

LOHIER, J., filed an opinion concurring in part and dissenting in part.

PÉREZ, J., filed an opinion concurring in part and dissenting in part.

MERRIAM, J., filed an opinion concurring in part and dissenting in part.

CHIN, J., filed a dissenting opinion in which CARNEY and KAHN, JJ., joined in full, MERRIAM, J., joined as to Parts I and II, LEE and PÉREZ,

∗ Judge Chin and Judge Carney, who are senior judges, participated in this rehearing en banc pursuant to 28 U.S.C. § 46(c)(1) and 28 U.S.C. § 294(c).

2 JJ., joined as to Part II, and LOHIER and ROBINSON, JJ., joined as to Part III.

An athletic conference permits Connecticut high school students to participate on athletic teams consistent with the gender identity established in their school records. Four non-transgender female track and field athletes sued the conference and member school districts, alleging that allowing transgender girls to participate in girls’ track and field deprives them of equal athletic opportunity in violation of Title IX. Two transgender female athletes intervened. We do not consider whether Plaintiffs’ Title IX claims have any merit or whether they would be entitled to the relief that they seek as a matter of equity, but rather whether the district court has jurisdiction to hear their claims in the first instance. We conclude that it does, for the reasons advocated for both by Plaintiffs and by Intervenors. First, Plaintiffs have established Article III standing at this stage in the litigation. They have pled a concrete, particularized, and actual injury in fact that is plausibly redressable by monetary damages and an injunction ordering Defendants to alter certain athletic records. Second, the district court was not required to determine whether Defendants had adequate notice of a Title IX violation to be liable for monetary damages before reaching the merits of Plaintiffs’ Title IX claims. Accordingly, we VACATE and REMAND for further proceedings. ________

JOHN J. BURSCH (Christiana M. Kiefer, Roger G. Brooks, Cody S. Barnett, Rory T. Gray, on the brief), Alliance Defending Freedom, Washington, DC, for Plaintiffs-Appellants.

PETER J. MURPHY (Linda L. Yoder, on the brief), Shipman & Goodwin LLP, Hartford, CT, for Defendants-Appellees Connecticut Association of Schools, Inc. d/b/a Connecticut Interscholastic Athletic Conference; Danbury Public Schools Board of Education.

3 Johanna G. Zelman, FordHarrison, LLP, Hartford, CT, for Defendants-Appellees Bloomfield Public Schools Board of Education; Cromwell Public Schools Board of Education.

David S. Monastersky, Howd & Ludorf, LLC, Hartford, CT, for Defendants-Appellees Glastonbury Public Schools Board of Education; Canton Public Schools Board of Education.

JOSHUA A. BLOCK (Ria Tabacco Mar, Elana Bildner, Dan Barrett, on the brief), ACLU Foundation, New York, NY, for Intervenor- Defendants-Appellees Andraya Yearwood; Thania Edwards, on behalf of her daughter, T.M.

Michael E. Roberts, Commission on Human Rights and Opportunities, Hartford, CT, for Intervenor-Defendant-Appellee Commission on Human Rights and Opportunities. ________

NATHAN, Circuit Judge:

Ten years ago, the conference governing interscholastic sports in

Connecticut made the decision to permit high school students to participate in

school-sponsored athletics consistent with the gender identity established in their

school records. This case arose when Plaintiffs, a group of non-transgender girls,

challenged that policy in federal court, alleging that it violates Title IX, which

4 prohibits sex discrimination in education. To remedy their alleged injury,

Plaintiffs seek monetary damages from the athletic conference and its member

school districts, whom they named as Defendants. They also seek an injunction

requiring Defendants to alter certain athletic records by removing times of

transgender girls and reranking titles and placements of non-transgender girls.

Whether Plaintiffs’ Title IX claims have any merit is not before us today.

Nor is Plaintiffs’ ultimate entitlement to a remedy. We consider only whether

Plaintiffs have standing to sue and whether they can, at this stage, seek monetary

damages. Although the specific issues before us are narrow and our decision very

limited in scope, questions of standing and the availability of monetary damages

have broad implications for all manner of civil rights litigation and civil rights

plaintiffs. Precedent and principle require that we proceed cautiously before

limiting access to courts and remedies.

At core, we conclude that the case should return to the district court for

consideration in the first instance of whether Plaintiffs have plausibly stated a

claim under Title IX. In doing so, we adopt the outcome advocated for on appeal

5 both by Plaintiffs and by Intervenors, the transgender girls against whom they

competed. More specifically, we conclude that further proceedings in the district

court are required for two reasons.

First, we hold that Plaintiffs have pled facts sufficient to establish Article III

standing at this stage in the litigation. Plaintiffs all personally competed in high

school track in Connecticut, and they all identified instances in which they raced

against and finished behind one or both Intervenors. Plaintiffs allege—and we

must assume—that but for Intervenors’ participation in these specific races, they

would have placed higher. For the purposes of the standing inquiry, we must also

assume that Plaintiffs are correct that allowing Intervenors to compete in those

races violated Title IX. With these assumptions in mind, we conclude that

Plaintiffs adequately pled a concrete, particularized, and actual injury in fact: the

alleged denial of equal athletic opportunity and concomitant loss of publicly

recognized titles and placements during track and field competitions in which

they participated against and finished behind Intervenors. On the issue of

6 whether Plaintiffs have plausibly stated an injury in fact, all members of the en

banc Court agree unanimously that they have.

We further conclude that the alleged injury is plausibly redressable by

monetary and injunctive relief. To be sure, no injunction could change the way

past races were run. Moreover, ordering Defendants to alter private records or

records that do not personally pertain to and impact Plaintiffs would provide

Plaintiffs with at most psychic satisfaction, which is not an acceptable Article III

remedy. But Plaintiffs plausibly allege that directing Defendants to alter public

athletic records related to the particularized injury they allege could at least

provide Plaintiffs with the publicly recognized titles and placements they would

have received if Intervenors had not competed and finished ahead of Plaintiffs in

specific races.

The same would be true if the facts were reversed and an athletic conference

decided to categorize transgender girl athletes as boys. If transgender girls alleged

that such a policy discriminated against them on the basis of sex and deprived

them of publicly recognized titles and placements, they too would have standing

7 to bring a Title IX claim. And they too could seek an injunction altering the

existing public records to accurately reflect their alleged athletic achievement.

Similarly, Intervenors have an ongoing interest in litigating against any alteration

to their public athletic records. The legally cognizable interest Intervenors have in

protecting the records of their athletic achievements, including times and

placements in races they have run, is materially indistinguishable from the interest

Plaintiffs assert.

Defendants argue that an injunction to alter the relevant records would not

be fair or appropriate. That may be. But our precedent establishes that the

fairness, justice, and novelty of a remedy are equitable considerations that the

district court would need to evaluate when exercising its discretion to fashion

appropriate injunctive relief, not factors for determining Article III standing.

The second reason for remand to the district court concerns whether

Plaintiffs have a private right of action to monetary damages, under a framework

originating from the Supreme Court’s decision in Pennhurst State School & Hospital

v. Halderman, 451 U.S. 1 (1981). Because Congress enacted Title IX pursuant to its

8 Spending Clause power, the statute operates like a contract: in exchange for

federal funds, educational institutions agree to comply with Title IX and its

implementing regulations. In keeping with the contractual nature of this bargain,

if an institution lacked notice of a Title IX violation, private parties generally

cannot recover monetary damages for the violation. We do not resolve today

whether Plaintiffs or Defendants are correct as to the availability of monetary

damages in this case. Rather, consistent with the view espoused by Intervenors,

there is good reason here to consider the merits of Plaintiffs’ Title IX claims before

or in tandem with the question of notice. Courts typically have not analyzed notice

as a freestanding issue before reaching the merits of a Title IX claim, and

understandably so. The parties here dispute whether, in order to recover

monetary damages, Plaintiffs can establish there was adequate notice that

allowing transgender girls to compete in girls’ sports violated Title IX. This

question is difficult to answer without first considering whether allowing

transgender girls to compete in girls’ sports even violates Title IX to begin with.

Yet the district court concluded that it was required to resolve the theoretical

9 availability of monetary damages before reaching the merits of Plaintiffs’ Title IX

claims. That was error. On remand, we direct the district court to reach the merits

before or in tandem with the question of notice.

Accordingly, we VACATE the judgment of the district court and REMAND

for further proceedings. On remand, the district court 1 should assess in the first

instance whether Plaintiffs’ complaint states a claim for a violation of Title IX.

BACKGROUND

I. Factual Allegations 2

For the past decade, the Connecticut Interscholastic Athletic Conference

(CIAC), a nonprofit organization that governs interscholastic sports in

Connecticut, has applied a policy permitting high school students to participate

on athletic teams consistent with their established gender identity (the CIAC

Policy). The CIAC Policy directs member school districts to determine students’

1 In their brief before the three-judge panel of this Court, Plaintiffs requested that the case be reassigned to a different district court judge upon remand. We deny that request. 2 The factual allegations are taken from Plaintiffs’ second amended complaint and any incorporated documents, and they are assumed to be true at this stage. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

10 eligibility to participate on teams “based on the gender identification of that

student in current school records and daily life activities in the school and

community at the time that sports eligibility is determined for a particular season.”

CIAC By-Laws Article IX, Section B. Students are “not . . . permitted to participate

in practices or to try out for gender specific sports teams that are different from

their publicly identified gender identity at that time or to try out simultaneously

for CIAC sports teams of both genders.” Id.

Plaintiffs Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti

are four non-transgender female athletes who competed in high school track in

Connecticut. During the 2017, 2018, and 2019 track seasons, Plaintiffs competed

in CIAC-sponsored events against two transgender female athletes, Andraya

Yearwood and Terry Miller, who are Intervenors in this case. In some but not all

races, Intervenors finished ahead of Plaintiffs. For example, in the 2019 state open

indoor 55m final, Plaintiff Mitchell finished in 3rd place behind Intervenors Miller

and Yearwood. For each Plaintiff, the complaint identifies at least one race in

which she allegedly competed against and lost to one or both Intervenors. The

11 complaint further alleges that at times, Intervenor Miller’s and Intervenor

Yearwood’s results meant that they qualified for the next level of competition and

certain Plaintiffs did not. For example, Plaintiff Soule finished 8th in the 2019 state

open indoor 55m preliminary race, losing to both Intervenors Miller and

Yearwood, who took 1st and 2nd place. The complaint alleges that if Intervenors

Miller and Yearwood had not competed in that race, Plaintiff Soule would have

qualified for the regional championship.

In Plaintiffs’ view, the CIAC Policy of allowing participation consistent with

an individual’s established gender identity discriminated against them by

requiring Plaintiffs to compete against transgender girls, who Plaintiffs allege

have a “physiological athletic advantage.” App’x 140. Plaintiffs claim that by

putting them at this alleged competitive disadvantage, the CIAC Policy violates

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, which prohibits

sex discrimination in education by institutions that receive federal financial

assistance.

12 II. Procedural History

Beginning in 2018, Plaintiffs and their parents complained to CIAC officials

and their respective schools, alleging that the CIAC Policy denied them fair and

equal competitive opportunities and the publicly recognized titles and placements

they deserved. Defendants continued to enforce the CIAC Policy. In June 2019,

Plaintiffs filed a Title IX complaint with U.S. Department of Education’s Office for

Civil Rights, which launched a formal investigation. As the spring 2020 track

season approached, Plaintiffs turned to federal court to attempt to prevent

Intervenors Yearwood and Miller from competing consistent with their

established gender identity as girls.

In February 2020, Plaintiffs commenced this action in the District of

Connecticut against the CIAC and several of its member school districts. Plaintiffs

principally sought (1) a declaration that Defendants violated Title IX; (2) an

injunction prohibiting Defendants from enforcing the CIAC Policy; (3) an

injunction requiring Defendants to “correct” their official athletic records by

giving “female athletes” the “credit and/or titles” they “would have

13 received . . . but for the participation” of transgender girls in “elite competitions

designated for girls or women”; (4) an injunction requiring Defendants to further

“correct” the records by “remov[ing]” transgender girls from the records for those

competitions and “remov[ing] times achieved” by transgender girls “from any

records purporting to record times achieved by girls or women”; (5) nominal and

compensatory damages; and (6) attorneys’ fees and expenses under 42 U.S.C.

§ 1988. App’x 175–76 (Second Amended Complaint). The district court allowed

Yearwood, Miller, and the Connecticut Commission on Human Rights and

Opportunities to intervene as Intervenor-Defendants.

Soon after the case commenced, the COVID-19 pandemic broke out, causing

all spring track events to be cancelled. In August 2020, Defendants moved to

dismiss the operative complaint for lack of subject-matter jurisdiction and for

failure to state a claim on which relief could be granted, pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure.

In April 2021, the district court granted Defendants’ motion to dismiss. See

Soule ex rel. Stanescu v. Conn. Ass’n of Schs., Inc., No. 20-cv-201, 2021 WL 1617206

14 (D. Conn. Apr. 25, 2021). First, the district court found that Plaintiffs’ request for

an injunction prohibiting Defendants from enforcing the CIAC Policy going

forward was moot. By that time, Plaintiffs Soule and Miller and both Intervenors

had all graduated from high school. Plaintiffs Smith and Nicoletti had not yet

graduated, but they could not identify any transgender student against whom

they were likely to compete. Second, the district court dismissed Plaintiffs’ request

for an injunction requiring Defendants to “revise” their athletic records, reasoning

that Plaintiffs failed to establish the redressability element of standing for that

form of relief. Id. at *7. Finally, the district court held that Plaintiffs’ claims for

monetary damages were barred because under Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1 (1981), “monetary relief is available in private suits under

Title IX only if the defendant received adequate notice that it could be liable for

the conduct at issue” and Defendants “did not receive the requisite notice.” Soule,

No. 20-cv-201, 2021 WL 1617206, at *8. Though Plaintiffs argued that “the question

of notice should be deferred until a later stage of the case,” the district court

determined that doing so would be improper. Id. at *8 n.13. It reasoned that if

15 monetary damages were barred under Pennhurst, “the action is subject to dismissal

in its entirety because the only remaining form of relief sought in this case . . . is

insufficient, standing alone, to sustain jurisdiction.” Id. (quotation marks

omitted). The district court did not reach the merits question of whether Plaintiffs

plausibly allege a violation of Title IX.

Plaintiffs timely appealed to the Second Circuit. On December 16, 2022, a

panel affirmed the judgment of the district court. Soule ex rel. Stanescu v. Conn.

Ass’n of Schs., Inc., 57 F.4th 43 (2d Cir. 2022). Plaintiffs conceded that their claim

for injunctive relief barring enforcement of the CIAC Policy going forward was

moot. As for the remaining claims, the panel held that Plaintiffs lacked standing

to seek an injunction “rewriting the records” because they failed to establish a

redressable injury in fact, and that their claim for monetary damages was barred

under Pennhurst. Id. at 50–56. Like the district court, the three-judge panel did not

reach the merits question of whether Plaintiffs stated a valid claim under Title IX.

In February 2023, the Court ordered that the appeal be reheard en banc, limited to

the issues of injury in fact, redressability, and Pennhurst notice.

16 DISCUSSION

We review de novo a district court’s dismissal of a complaint for lack of

standing and for failure to state a claim on which relief can be granted. Donoghue

v. Bulldog Invs. Gen. P’ship, 696 F.3d 170, 173 (2d Cir. 2012). We construe the

complaint in Plaintiffs’ favor, accepting all material factual allegations as true. Id.

The scope of this case has changed since it was before the district court and

since it was before the original three-judge panel. Only two live issues remain

before us: whether Plaintiffs have Article III standing to sue for the remedies they

seek and whether Pennhurst bars their claim for monetary damages. For the

reasons that follow, we conclude (1) that Plaintiffs have pled facts sufficient to

establish standing to seek monetary damages and some of the requested injunctive

relief, and (2) that the district court can and should reach the merits of Plaintiffs’

Title IX claims before or in tandem with the question of Pennhurst notice.

Consistent with the outcome on appeal advocated for both by Plaintiffs and by

Intervenors, we remand to the district court to consider the merits question in the

first instance.

17 I. Standing

Article III limits the federal judicial power to deciding “Cases” and

“Controversies.” U.S. Const. art. III § 2. “Under Article III, a case or controversy

can exist only if a plaintiff has standing to sue,” meaning a personal stake in the

outcome of the litigation. United States v. Texas, 143 S. Ct. 1964, 1969 (2023). This

limitation ensures that the judiciary “respects the proper—and properly limited—

role of the courts in a democratic society” by refraining from expounding on issues

that courts “have no business deciding.” DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 341 (2006) (quotation marks omitted). But courts must equally refrain from

narrowing constitutional standing requirements beyond what Article III dictates,

lest we needlessly bar plaintiffs with justiciable claims from having their day in

court. Standing is about who may access the courthouse, not about the merits of

the claims to be heard once inside. “[T]he fundamental aspect of standing is its

focus on the party seeking to get his complaint before a federal court and not on

the issues he wishes to have adjudicated” and “[t]he standing issue must therefore

18 be resolved irrespective of the merits of the substantive claims.” United States v.

Vazquez, 145 F.3d 74, 80–81 (2d Cir. 1998) (cleaned up).

As the party invoking federal jurisdiction, Plaintiffs bear the burden of

establishing Article III standing by showing three elements: (1) that they “suffered

an injury in fact,” (2) that the injury “is fairly traceable” to Defendants’ challenged

conduct, and (3) that the injury “is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The “manner and degree

of evidence required” to meet this burden depends on the stage of litigation. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may suffice . . . .” Id.

Moreover, “[s]tanding is not dispensed in gross; rather, plaintiffs must

demonstrate standing for each claim that they press and for each form of relief that

they seek.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (citation

omitted).

Defendants contend that Plaintiffs failed to establish the injury in fact and

redressability prongs of standing. As set forth below, we disagree.

19 A. Injury In Fact

To constitute an injury in fact sufficient to sustain Article III standing, an

alleged harm must be (1) concrete, (2) particularized, and (3) actual or imminent.

TransUnion, 141 S. Ct. at 2203. To be concrete, an injury must be “real, and not

abstract.” Id. at 2204 (quoting Spokeo, 578 U.S. at 340). While traditional tangible

harms such as physical and monetary injuries readily qualify as concrete, so do

some intangible harms, particularly if they have a “close historical or common-law

analogue.” Id. To be “particularized,” an injury “must affect the plaintiff in a

personal and individual way.” Spokeo, 578 U.S. at 339 (quotation marks omitted).

Finally, an injury is “actual or imminent” if it has actually happened or is

“certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)

(quotation marks omitted).

In this case, Plaintiffs allege that the CIAC Policy deprived them of an

opportunity to compete in fair and non-discriminatory high school track races, in

violation of Title IX. Moreover, the complaint alleges that Plaintiffs’ results in

those races were specifically impacted by the CIAC Policy: “each Plaintiff has

20 identified at least one specific instance in which she allegedly raced against—and

finished behind—a girl who is transgender.” Intervenors’ Br. at 28–29. The

complaint further alleges that three of the Plaintiffs have additionally identified

races in which they would have qualified to advance to the next level of

competition if Intervenors had not participated. Intervenors, the transgender

athletes who would be impacted by an adverse ruling, agree with Plaintiffs that

this suffices to establish injury in fact. So do we.

First, Plaintiffs allege a concrete injury: the denial of “equal athletic

opportunities” and loss of publicly recognized titles and placements in track and

field competitions, in violation of Title IX. App’x 163. The Supreme Court has

identified “discriminatory treatment” as an example of a “concrete, de facto,

injur[y].” TransUnion, 141 S. Ct. at 2205 (quotation marks omitted). In cases

involving claims of discriminatory treatment, the alleged harm is frequently

twofold: plaintiffs are discriminated against and that discriminatory treatment

results in the denial of certain benefits that they would otherwise have enjoyed.

Here, Plaintiffs allege that they were denied equal opportunities in track and field

21 competitions and, as a result, they were also denied the publicly recognized titles

and placements that would have flowed from those opportunities. And crucially

for Plaintiffs’ request for an injunction to alter the records, the alleged impact of

the CIAC Policy on Plaintiffs is measurable, not abstract or speculative. Plaintiffs’

claim is not that they might have won placements and titles if Intervenors had not

competed, but rather that they certainly would have. See Spokeo, 578 U.S. at 340

(“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” (quoting

Black's Law Dictionary 479 (9th ed. 2009))); see also Bird v. Lewis & Clark Coll., 303

F.3d 1015, 1017–19 (9th Cir. 2002) (finding standing for injunctive relief because

plaintiff alleged “a plausible causal connection between her academic performance

. . . and the alleged discrimination” (emphasis added)). Though a court

considering Plaintiffs’ claims on the merits might ultimately conclude that

competing under the CIAC Policy did not deprive them of equal athletic

opportunity and amount to discriminatory treatment under Title IX, standing “in

no way depends on the merits of the claim.” Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 576 U.S. 787, 800 (2015) (quotation marks omitted).

22 Second, the alleged injury is particularized because Plaintiffs are athletes

who personally competed in CIAC-sponsored events, rather than, for instance,

bystanders who simply wish to challenge the CIAC Policy because they disagree

with it on principle. See, e.g., McCormick ex rel. McCormick v. Sch. Dist. of

Mamaroneck, 370 F.3d 275, 284 (2d Cir. 2004) (holding that an alleged injury related

to the scheduling of girls’ soccer was “particularized” because plaintiffs were

“soccer players who the parties have stipulated would play soccer for their high

schools” if the challenged schedule changed). Finally, the injury is actual because

it is alleged to have already occurred.

B. Redressability

To satisfy the redressability element of Article III standing, a plaintiff must

show that it is “likely, as opposed to merely speculative, that the [alleged] injury

will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quotation marks

omitted). A plaintiff makes this showing when the relief sought “would serve to

. . . eliminate any effects of” the alleged legal violation that produced the injury in

fact. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–06 (1998).

23 Plaintiffs must separately establish standing for each form of relief sought.

See TransUnion, 141 S. Ct. at 2208. Therefore, we address whether Plaintiffs’

alleged injury in fact is likely redressable both by monetary damages and by the

specific injunctive relief sought in the complaint. 3

1. Monetary Damages

In their prayer for relief, Plaintiffs seek “[a]n award of nominal and

compensatory damages and other monetary relief as permitted by law.” App’x

176. All parties acknowledge that some form of monetary damages could redress

Plaintiffs’ alleged injury. 4 Because Plaintiffs’ claim is “based on a completed

3 We do not address Plaintiffs’ request for an injunction prohibiting Defendants from enforcing the CIAC Policy going forward. As conceded by Plaintiffs at oral argument before the three- judge panel of this Court, that claim is now moot because “all Plaintiffs have graduated from high school and are no longer subject to the Policy.” Soule, 57 F.4th at 47 n.2; see Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (holding that “the end of the ice hockey season and the graduation of the last of the plaintiffs render this [Title IX] action moot” because “[n]one of the plaintiffs can benefit from an order requiring equal athletic opportunities for women ice hockey players”). 4Defendants’ brief asserts that “nominal damages may be available in some Title IX cases,” but that “they are not available in this particular case by virtue of Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)”—in other words, monetary damages are unavailable “[b]ecause the law does not authorize [them],” not because they would fail to redress Plaintiffs’ alleged injury. Defendants’ Br. at 37. At oral argument, Defendants took the position that Plaintiffs have not alleged “an injury in fact . . . that would be redressable by money damages if money damages are available under Pennhurst.” Transcript at 40. To the extent that Defendants have changed their position, we reject their view of redressability via monetary damages.

24 violation of a legal right”—their Title IX right to equal athletic opportunity and

related loss of publicly recognized titles and placements—“nominal damages

provide” at least some “necessary redress.” Uzuegbunam v. Preczewski, 141 S. Ct.

792, 802 (2021). So too would compensatory damages, if available, which are

definitionally “intended to redress the concrete loss that the plaintiff has suffered

by reason of the defendant’s wrongful conduct.” Cooper Indus., Inc. v. Leatherman

Tool Grp., Inc., 532 U.S. 424, 432 (2001).

2. Injunctive Relief to Alter Athletic Records

Plaintiffs’ prayer for relief additionally includes two requests for an

injunction related to the “correct[ion]” of Defendants’ official athletic records:

(D) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove male athletes from any record or recognition purporting to record times, victories, or qualifications for elite competitions designated for girls or women, and conversely to correctly give credit and/or titles to female athletes who would have received such credit and/or titles but for the participation of athletes born male and with male bodies in such competitions; (E) An injunction requiring all Defendants to correct any and all records, public or non-public, to remove times achieved by athletes born male and with male bodies from any records purporting to record times achieved by girls or women . . . .

25 App’x 176. We conclude that Plaintiffs have standing to seek some, but not all, of

this requested injunctive relief. Specifically, as explained below, we conclude that

an injunction could plausibly redress the injury that allegedly resulted from

Plaintiffs’ loss of publicly recognized titles and placements in specific races at

which they competed against and finished behind Intervenors.

Once again, at this stage in the litigation, we must draw all reasonable

inferences in favor of Plaintiffs and assess only whether the allegations are

sufficient to establish that their requested injunctive relief would theoretically

redress the alleged denial of equal athletic opportunity and concomitant loss of

publicly recognized titles and placements. To be sure, no court has the ability to

rewind time. Plaintiffs cannot rerun different races or compete in championships

long past. But Plaintiffs “need not show that a favorable decision will relieve

[their] every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (emphasis in

original). Article III only requires that some form of altering the records “would

at least partially redress” the alleged injury. Meese v. Keene, 481 U.S. 465, 476 (1987).

Here, the complaint alleges that Plaintiffs would have placed higher in several

26 races but for the participation of Intervenors Yearwood and Miller, who finished

before them in those races. In this procedural posture, we must assume Plaintiffs

are correct that permitting transgender girls to compete in those races violated

federal law and that Plaintiffs’ current records are therefore impacted by an

unlawful policy. It is plausible that altering certain public athletic records—for

example, indicating that Plaintiff Mitchell finished 1st rather than 3rd in the 2019

state open indoor 55m final—would at least partially redress the alleged denial of

equal athletic opportunity by giving Plaintiffs the higher placements and titles

they would have received without the CIAC Policy in place, albeit belatedly. 5 In

other words, it is likely that granting the above-described injunctive relief would

“eliminate [some] effects of” the alleged legal violation that produced the injury

5 Nothing in our analysis requires counterfactual imagination about how Plaintiffs would have ranked if the races were rerun. See Pérez, J., Concurring Op. at 7. Rather, the injury is theoretically redressable by adjusting final placements and titles in specific races that were actually run. The same is true, for example, in cases where athletic records are retroactively altered to account for cheating or doping. Nor does anything in our analysis contemplate that multiple Plaintiffs would place first in some imagined race. See id. at 8. For example, Mitchell’s record could theoretically be altered to indicate a 1st place finish in the 55m final, whereas Soule’s record could theoretically be altered to indicate that she finished 6th in the 55m preliminary race, which would make her a finals qualifier.

27 in fact, Steel Co., 523 U.S. at 106, because those effects allegedly include loss of

publicly recognized titles and placements in specific races that were run—effects

that persist even after their high school athletic careers have ended.

The same would be true were the shoe on the other foot. Imagine if some

other athletic conference adopts a policy that, unlike the CIAC Policy, categorizes

transgender girl athletes as boys in their public records of athletic

accomplishment. Under today’s holding, if those transgender girls sue alleging a

Title IX violation, they would have standing to seek to have those public records

altered to indicate their alleged accurate athletic achievement. And by similar

logic, the Intervenors have an ongoing interest in litigating against any alteration

of their public athletic records. See Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123,

128–29 (2d Cir. 2001) (explaining that to intervene in an action as of right, a party

must “show an interest in the action” and “demonstrate that the interest may be

impaired by the disposition of the action” (quoting N.Y. News, Inc. v. Kheel, 972

F.2d 482, 485 (2d Cir. 1992))); id. at 129 (citing Fed. R. Civ. P. 24(a)(2)); see also

Motion to Intervene at 9–10, Soule, No. 20-cv-201 (S.D.N.Y. Feb. 21, 2020), ECF No.

28 36 (Intervenors arguing they satisfied the Rule 24 standard in part because they

“have a protectable legal interest . . . in protecting records of their past

accomplishments”). The legal interest that underlies Yearwood and Miller’s

intervention in this case—an interest in protecting against after-the-fact revision of

the public records of their race times and placements—is materially

indistinguishable from the interest Plaintiffs invoke. 6

The significance of these athletic records may not be apparent to those who

do not participate in the world of competitive sports. But say, for example, that a

group of plaintiffs challenged a policy that allegedly discriminated against girls in

academics by leaving them off the honor roll (or denying Latin honors, see Diss.

Op. at 18-19). Surely, those plaintiffs would have standing to seek an injunction

6The dissent’s theory of standing for injunctive relief would leave the transgender girl athletes in the above hypothetical without standing to seek alteration of existing athletic records consistent with their athletic achievement. As to the Intervenors, the dissent acknowledges that they have an interest in preventing alteration of their individual records. See Diss. Op. at 21 (collecting cases confirming that student athletes have standing to prevent alteration of athletic records). But it asserts that this interest only exists when an athlete faces a future threat of records expungement. Id. This approach draws a distinction without a difference. In both cases, student athletes have an interest in the accurate public representation of their athletic achievements—an interest equally threatened by record expungement or inaccurate records from the start. And in both cases, ensuring that public records accurately reflect those achievements provides more than the “psychic satisfaction” derived from “a favorable judgment.” Steel Co., 523 U.S. at 107.

29 to alter their academic records. To many, publicly recognized athletic

achievements are just as important as academic ones. Drawing a distinction

between the two would import a value judgment into the standing analysis where

it does not belong.

Nor does the standing analysis in this case depend on the relevance of the

injunctive remedy for obtaining some additional future benefit, such as

employment opportunities. See Diss. Op. at 13-16. The loss of publicly recognized

titles and lower placements in specific races is itself an existing and ongoing effect

of Plaintiffs’ alleged injury—an effect that would be redressed by public record

alterations reflecting those achievements. That one may not deem them valuable

is simply not the relevant inquiry for standing purposes. Just as an award of

nominal damages partially (even if nominally) remedies the violation of a legal

right, injunctive relief can partially (even if nominally) remedy the existing harms

that flow from the past denial of equal opportunity alleged in this case. See

Uzuegbunam, 141 S. Ct. at 801 (“True, a single dollar often cannot provide full

30 redress, but the ability to effectuate a partial remedy satisfies the redressability

requirement.” (quotation marks omitted)).

Now, there are several key limitations to our holding on standing. First,

Plaintiffs do not have standing to seek remedies for generalized grievances about

the CIAC Policy. Arguably, Plaintiffs’ prayer for relief does not stop with their

own records allegedly impacted by the CIAC Policy. In paragraph E, Plaintiffs

seek the removal of “record times” achieved by transgender girls from “any

records purporting to record times achieved by girls or women,” seemingly

irrespective of whether the record times personally impacted Plaintiffs. App’x 176

(emphasis added). In paragraph D, Plaintiffs ask for an order requiring

Defendants both to remove transgender girls from “any record or recognition

purporting to record times, victories, or qualifications for elite competitions

designated for girls or women,” and to give non-transgender female athletes the

“credit and/or titles” they would have received in races but for the participation

of transgender girls. Id. (emphasis added). To the extent that these prayers for

relief request that Defendants update records that have no bearing on Plaintiffs’

31 own athletic achievement—such as by removing the victories of transgender girls

who never competed against Plaintiffs or by making revisions to records that

would only benefit non-transgender girls who are not parties to this suit—

Plaintiffs have no standing.

“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff

into federal court; that is the very essence of the redressability requirement.” Steel

Co., 523 U.S. at 107. Here, Plaintiffs allege an injury in fact because they claim that

they were personally denied equal athletic opportunities and experienced the

associated loss of publicly recognized titles and placements. A “generalized

grievance[]” that a school’s athletic offerings violate Title IX would be “too abstract

to constitute a ‘case or controversy’ appropriate for judicial resolution.”

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 227 (1974). By the

same token, the remedy sought must redress the particularized harm that

Plaintiffs allege. An order requiring Defendants to remove record times and

achievements of transgender girls that have no impact on Plaintiffs’ own athletic

achievements would afford Plaintiffs at most the “psychic satisfaction” of “a

32 favorable judgment,” which “is not an acceptable Article III remedy because it

does not redress a cognizable Article III injury.” Steel Co., 523 U.S. at 107. Plaintiffs

may disagree with the way in which the CIAC’s policy recognizes transgender

girls and their athletic achievements, but policy disagreement without

particularized harm is not a basis for Article III standing. Thus, Plaintiffs only

have standing to seek the injunctive relief requested to the extent they seek to alter

records related to the particularized injury they allege.

Second, Plaintiffs’ standing to seek injunctive relief ordering Defendants to

alter their athletic records is limited to the alteration of public athletic records.

Plaintiffs’ prayer for relief also asks for a court to order Defendants to alter their

private records. See App’x 172 (“Plaintiffs are entitled to injunctive relief requiring

all Defendants to correct all league or school records, public or private.”). But such

an order would afford Plaintiffs at most “psychic satisfaction,” which, as explained

above, is insufficient to establish Article III standing. Steel Co., 523 U.S. at 107.

Finally, in holding that Plaintiffs have standing to seek injunctive relief

ordering an alteration to certain public records, we express no view as to whether

33 the requested relief would be fair or appropriate, even assuming the success of

Plaintiffs’ claims on the merits. Defendants argue that Plaintiffs’ requested relief

regarding their own records would also retroactively alter Intervenors’ athletic

records and therefore would raise serious equitable concerns. That may be. As

Plaintiffs recognized at oral argument, Intervenors “haven’t done anything

wrong.” Transcript at 8. Like Plaintiffs, their participation in girls’ track events

was consistent with the existing CIAC Policy. Moreover, Intervenors participated

in girls’ track to the exclusion of other opportunities, which they could not now go

back and pursue. Defendants and Intervenors also argue that the novelty of the

requested injunctive relief makes it an unsuitable means of remedying the alleged

injury in fact.

Defendants view such equitable considerations as barriers to establishing

Article III redressability. And although Intervenors agree with our conclusion that

Plaintiffs have alleged an injury in fact likely redressable by monetary damages,

their brief argued that it could not be redressed by an injunction ordering an

alteration of the records because “depriving other athletes of victories [they] won

34 based on the rules in place at the time” would be purportedly “unprecedented.”

Intervenors’ Br. at 32. But Intervenors walked back this position at oral argument

and agreed with Plaintiffs that arguments about the requested relief’s

unprecedented nature, however persuasive, may not go to our jurisdiction to hear

Plaintiffs’ claims. We adopt that view.

The fairness, justice, and novelty of a remedy do not speak to its ability to

“redress a cognizable Article III injury.” Steel Co., 523 U.S. at 107. Instead, as

Plaintiffs and Intervenors agreed at oral argument, the district court would

evaluate such equitable considerations when exercising its discretion to fashion

appropriate injunctive relief if the case proceeds to that stage. “An injunction is a

matter of equitable discretion; it does not follow from success on the merits as a

matter of course,” and “the balance of equities and consideration of the public

interest [] are pertinent in assessing the propriety of any injunctive relief,

preliminary or permanent.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32

(2008). The fact “that [a] plaintiff has standing to pursue her claim does not mean

that she is entitled to the relief she seeks.” E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d

35 442, 461 (2d Cir. 2014). Factors such as whether the requested relief is “justified,”

“reasonable,” and fair “bear not on our standing analysis under Article III, but on

the equities of [the] plaintiff’s claim for relief.” Id. Likewise, to the extent that

there may be legal obstacles to the requested injunction, “the legal availability of

a certain kind of relief” goes to the merits, not jurisdiction. Chafin v. Chafin, 568

U.S. 165, 174 (2013); accord MOAC Mall Holdings LLC v. Transform Holdco LLC, 143

S. Ct. 927, 935 (2023).

In sum, Plaintiffs have plausibly alleged a concrete, particularized, and

actual injury in fact redressable by monetary damages or an injunction ordering

Defendants to alter public athletic records related to the particularized injury they

allege.

II. Pennhurst Notice

Though our jurisdictional inquiry ends with standing, the district court

dismissed Plaintiffs’ claims for monetary damages on different grounds:

Defendants’ lack of notice of liability under Title IX. We vacate that portion of the

district court’s opinion on narrow grounds, based on the district court’s erroneous

36 conclusion that it must resolve the question of notice before reaching the merits of

Plaintiffs’ Title IX claims.

An implied private right of action exists under Title IX, and because the right

is judicially implied, courts “have a measure of latitude to shape a sensible

remedial scheme that best comports with the statute.” Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 284 (1998). In addition to injunctive relief, monetary

damages are an available remedy in private Title IX actions. Franklin v. Gwinnett

Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). However, because Congress enacted Title

IX pursuant to its Spending Clause power, private damages are not necessarily

available for every violation of Title IX. In Pennhurst State School & Hospital v.

Halderman, the Supreme Court explained that “legislation enacted pursuant to the

spending power is much in the nature of a contract: in return for federal funds, the

States agree to comply with federally imposed conditions.” 451 U.S. 1, 17 (1981).

Accordingly, “[t]he legitimacy of Congress’ power to legislate under the spending

power . . . rests on whether the State [or funding recipient] voluntarily and

knowingly accepts the terms of the ‘contract’” and there can “be no knowing

37 acceptance if a State [or funding recipient] is unaware of the conditions or is unable

to ascertain what is expected of it.” Id. The contractual nature of Spending Clause

legislation limits not only “the scope of conduct for which funding recipients may

be held liable for money damages” but also “the scope of available remedies in

actions brought to enforce Spending Clause statutes. After all, when considering

whether to accept federal funds, a prospective recipient would surely wonder not

only what rules it must follow, but also what sort of penalties might be on the

table.” Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1570 (2022)

(cleaned up).

In the context of Title IX, the Supreme Court has held that Pennhurst does

not bar private damages “where the funding recipient engages in intentional

conduct that violates the clear terms of the statute,” Davis ex rel. LaShonda D. v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999), such as when school officials

choose not to stop a teacher’s sexual harassment of a student or when a school

board retaliates against a teacher for complaining about sex discrimination in the

school’s athletic program. See Franklin, 503 U.S. at 74–75 (sexual harassment);

38 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005) (retaliation). But in cases

“that do not involve official policy” of the school receiving federal funding, private

damages are unavailable unless an official with authority to act on the school’s

behalf has “actual knowledge of discrimination in the recipient’s programs” and

is deliberately indifferent. Gebser, 524 U.S. at 290.

Plaintiffs and Defendants in this case dispute (1) whether Pennhurst’s notice

requirement is applicable to Title IX suits challenging an official policy of a

funding recipient, such as the CIAC Policy, and (2) if so, whether the notice

requirement is satisfied. The district court and panel both determined that

Plaintiffs must satisfy the Pennhurst notice requirement to seek monetary

damages, and that they failed to do so. We need not and do not reach these

questions because we vacate the district court’s judgment on another basis: its

apparent—and erroneous—determination that it lacked discretion to reach the

merits of Plaintiffs’ claims without first determining if monetary damages would

be available under Pennhurst.

39 In opposing Defendants’ motion to dismiss, Plaintiffs argued that “the

question of notice should be deferred until a later stage of the case.” Soule, No. 20-

cv-201, 2021 WL 1617206, at *8 n.13. Addressing this argument, the district court

determined that it lacked the discretion to do what Plaintiffs asked, reasoning that

“if the plaintiffs’ claims for money damages are barred due to lack of adequate

notice, the action is subject to dismissal in its entirety because the only remaining

form of relief sought in this case—attorney’s fees and expenses—is insufficient,

standing alone, to sustain jurisdiction.” Id. (quotation marks omitted). In other

words, the district court concluded that in order to reach the merits, it had to

determine whether it had jurisdiction. And, having determined that there was no

standing to seek injunctive relief, the district court concluded that it must first

assess whether monetary damages are available under Pennhurst. The district

court erroneously concluded that if monetary damages are not available under

Pennhurst, it would be required to dismiss the entire matter on jurisdictional

grounds. But as noted previously, “the legal availability of a certain kind of relief”

does not impact a court’s jurisdiction to decide a claim. Chafin, 568 U.S. at 174.

40 Moreover, we agree with Intervenors that there are strong reasons for

addressing the merits first in this case. To begin, none of Pennhurst’s Title IX

progeny have analyzed notice as a freestanding issue before reaching the merits.

Instead, the Supreme Court cases applying Pennhurst to Title IX either begin with

a merits analysis of whether the challenged conduct was prohibited or weave that

analysis into considerations of notice. See Franklin, 503 U.S. at 75; Gebser, 524 U.S.

at 280–93; Davis, 526 U.S. at 643; Jackson, 544 U.S. at 182–84.

We leave open the possibility that there may be circumstances in which it

would be appropriate to decide the question of notice as a threshold freestanding

issue. But under the circumstances of this present dispute, we direct the district

court on remand to reach the merits before or in tandem with the question of

notice. The parties here do not debate whether there was adequate notice of

conduct. Defendants obviously knew that the CIAC Policy existed. Rather, the

debate surrounds whether there was adequate notice that the CIAC Policy violates

41 Title IX and whether such notice is even required. 7 The question of adequate

notice is difficult to answer without first considering whether the CIAC Policy

does indeed violate Title IX. The entwinement of what the law requires and

whether there is notice of what the law requires is especially apparent where, as

here, Plaintiffs argue that the requisite notice stems from the statutory text itself—

not, for example, a judicial decision or agency guidance. Cf. Bennett v. Ky. Dep’t of

Educ., 470 U.S. 656, 666 (1985) (explaining that Pennhurst was no defense to liability

because “[t]he requisite clarity in this case is provided by Title I; States that chose

to participate in the program agreed to abide by the requirements of Title I as a

condition for receiving funds”).

This sequencing approach—reaching the merits before or in tandem with

the question of notice—also has the benefit of aiding in the development of the

7 In Mansourian v. Regents of the University of California, 602 F.3d 957 (9th Cir. 2010), the Ninth Circuit held that “no notice requirement is applicable to Title IX claims that rest on an affirmative institutional decision,” including “decisions with respect to athletics,” which are “easily attributable to the funding recipient and always—by definition—intentional.” Id. at 967–68 (cleaned up). Plaintiffs ask us to join the Ninth Circuit in holding that Pennhurst’s notice requirement does not apply to Title IX claims based on an official policy. Because we vacate the district court’s Pennhurst holding on a different basis, we decline to reach this question.

42 law, at least in the circumstances of this case. If courts skip ahead to ask whether

damages will be available under Pennhurst, then there may be fewer opportunities

for Title IX law to develop on the merits in suits seeking only monetary relief,

which means fewer opportunities for funding recipients to be put on notice as to

what Title IX requires of them. 8 And unlike, say, qualified immunity—which

provides “an immunity from suit”—Pennhurst notice is “a mere defense to

[damages] liability,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), so there is not the

same countervailing reason to avoid resolving the merits first.

In sum, the district court was not required to consider whether monetary

damages are barred under Pennhurst before reaching the merits of Plaintiffs’ Title

IX challenge. For that reason, we vacate the portion of its decision dismissing

Plaintiffs’ claim for monetary damages. On remand, the district court shall

consider the merits before or in tandem with the question of notice.

8The concern with allowing the law to develop will not present itself when plaintiffs properly maintain a claim for injunctive relief. But unlike in this case, plaintiffs do not always—and sometimes cannot—bring and sustain injunctive claims. See, e.g., Cook, 992 F.2d at 19 (collecting cases).

43 CONCLUSION

The holding of the en banc Court is limited. A majority of the Court

concludes that Plaintiffs have standing to sue for some of the injunctive relief

outlined in the complaint. As to the availability of monetary damages, a different

majority of the Court concludes that the district court on remand must resolve the

underlying merits question before or in tandem with the Pennhurst question.

Although competing concurring and dissenting opinions join issue on how the

Pennhurst analysis should be resolved and whether money damages are available,

a majority of the Court concludes a remand is appropriate without resolution of

these issues at this stage. At base, a broad majority of the Court adopts the

outcome advocated for both by Plaintiffs and by the girls who are transgender

who intervened: the case is remanded for the district court to resolve whether

Plaintiffs have stated a claim for a violation of Title IX.

The splintered nature of the Court’s opinions should not in any way suggest

that its holding encompasses a determination on that highly contested underlying

merits question. It does not. The Court reaches no conclusion as to whether

44 Plaintiffs have plausibly stated a Title IX violation. Nor does the Court opine on

the question of whether—even if Plaintiffs have stated such a claim—they are

entitled to any of the injunctive relief they seek.

Nor should the splintered nature of the Court’s en banc holding obfuscate

the extent of agreement reached. The Court unanimously concludes that Plaintiffs

have plausibly alleged an injury in fact, which would be redressable by monetary

damages if monetary damages are available under Pennhurst. This is a conclusion

of standing and remedies law that implicates access to courts for everyone.

The judgment of the United States District Court for the District of

Connecticut is VACATED and REMANDED for further proceedings consistent

with this Opinion. Plaintiffs’ request for reassignment to a different district court

judge on remand is DENIED.

45 PARK, Circuit Judge, joined by NARDINI and MENASHI, Circuit Judges, concurring:

I write to state what should be obvious but may get obscured in the flurry of separate statements accompanying today’s opinion of the Court: Only the majority opinion has precedential weight. The separate writings represent the views of their respective signers alone. To the extent that they interpret the opinion of the Court or opine on issues not before the Court, they do no more than signal the personal views of the authors and joining judges. If anything, they represent what a majority of the Court did not join.

The Court is splintered today mainly insofar as it ventures beyond the questions we took up for en banc review. On those, the decision of the Court is clear that the district court erred in dismissing Plaintiffs’ complaint. No. 21-1365 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., Inc.

MENASHI, Circuit Judge, joined by PARK, Circuit Judge, concurring:

I join the opinion of the court. The plaintiffs have standing to seek an injunction to modify athletic records to account for the “CIAC’s policy that allow[ed] biological males to compete in girls- only events.” Second Am. Compl. ¶ 82. And the district court erred in treating the Pennhurst notice requirement as jurisdictional.

I write separately to make three points about the Spending Clause issues in this case. First, the district court erred not only in treating Pennhurst as jurisdictional but also in failing to address whether the CIAC Policy was intentional conduct and therefore not subject to the notice requirement at all. Second, I would join the Fifth, Ninth, and Tenth Circuits in holding that an official policy of a recipient educational institution always qualifies as intentional conduct. For that reason, the Policy is not subject to the Pennhurst notice requirement. Third, even if we were to split from those circuits that have held that official policies are not subject to the Pennhurst notice requirement, the district court and the panel erred in concluding that the CIAC could not have been on notice that the Policy violated Title IX.

I

When they filed this lawsuit, the plaintiffs were “high school girls who compete[d] in interscholastic girls’ track and field,” each of whom “trained much of her life—striving to shave mere fractions of seconds off her race times—in order to experience the personal satisfaction of victory, gain opportunities to participate in state and regional meets, gain access to opportunities to be recruited and offered athletic scholarships by colleges, and more.” Id. ¶ 1. According to the complaint, their “personal and attainable goals of victory” were “taken from them” when they were “forced to compete against males with inherent physiological advantages in the girls’ category.” Id. ¶¶ 114, 117.

The plaintiffs allege that the CIAC Policy failed to provide “equal athletic opportunity for members of both sexes,” 34 C.F.R. § 106.41(c), because it afforded “students who are born female … materially fewer opportunities” for athletic achievement “than students who are born male,” Second Am. Compl. ¶ 4.

The entire en banc court now agrees that the plaintiffs have suffered an injury in fact. See ante at 20-23 (majority opinion); post at 6 (Chin, J., dissenting). Indeed, the denial of an equal opportunity to compete is an injury whether or not the plaintiffs could show that the outcome of any particular race would have been different under nondiscriminatory conditions. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (“The injury in cases of this kind is that a discriminatory classification prevents the plaintiff from competing on an equal footing.”) (internal quotation marks and alteration omitted); Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“The ‘injury in fact’ … is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”); McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 284 (2d Cir. 2004) (identifying the injury as “the opportunity to play for a team that can qualify for the Regional and State Championships” rather than obtaining such qualification).

The court correctly concludes that the injury is redressable by an injunction to modify the records to reflect the placements that would have occurred but for the alleged discriminatory treatment. There is no rule that equitable relief is unavailable to redress

2 discrimination if it would have the incidental effect of depriving a faultless third party of the benefits of discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 775 (1976) (“[W]e find untenable the conclusion that [seniority] relief may be denied merely because the interests of other employees may thereby be affected.”); Ass’n Against Discrimination in Emp., Inc. v. City of Bridgeport, 647 F.2d 256, 281 (2d Cir. 1981) (“[T]he mere possibility that a race-conscious remedy may have an adverse impact on nonminority individuals does not render that remedy impermissible.”). 1

Moreover, the district court would have discretion to craft an equitable remedy, so it may be possible to preserve the intervenors’ records while providing an appropriate recognition to the plaintiffs, perhaps in two different categories. Even if there were a rule about avoiding an impact on third parties, the district court could provide a remedy without violating that rule. 2

1 The intervenors acknowledged this point at oral argument. See Oral Argument Transcript at 71 (Counsel for the intervenors stating “[L]et’s say there is a discriminatory employment test that’s used. Someone gets a job as a result of passing that discriminatory employment test. Courts do have broad powers to provide the job to people who were unfairly excluded, and sometimes, in some circumstances, if it’s an inherently unique job, someone can be bumped, through no fault of their own. I think that is not the preferred remedy that—and courts are very reluctant to do that, but I can’t say that as an absolute matter that it is never appropriate to negatively affect the right of a third party.”). 2 See Oral Argument Transcript at 9-10 (Counsel for the plaintiffs stating “When you’re talking about equitable relief, I won’t say the sky is the limit, but certainly within parameters to make sure that the harm is actually remedied, the district court does have some discretion in how they’re going to award relief. It may not involve striking from the record books entirely someone else’s recorded times.”).

3 II

I also agree with the court that the district court erred in treating the Pennhurst notice requirement as jurisdictional. See ante at 39. The Pennhurst notice requirement—when it applies—arises because “legislation enacted pursuant to the spending power is much in the nature of a contract” and therefore liability “rests on whether the [recipient] voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Because the question is whether there has been an acceptance of contractual terms, Pennhurst operates as a defense to liability. 3 Such a defense is waivable and not jurisdictional. See 23 Williston on Contracts § 63:14 (4th ed.) (“[T]he defendant has the burden of pleading and proving any affirmative defense.”).

In my view, the district court made a second error: It assumed that Pennhurst requires notice in this case without considering whether Pennhurst applies at all. Before concluding that Pennhurst barred a damages remedy, the district court should have determined whether the Policy qualifies as “intentional conduct” for which no Pennhurst notice is required.

The Pennhurst doctrine requires the federal government to provide “clear notice” to recipients of federal funds of the terms on which the funds are granted. Pennhurst, 451 U.S. at 25. Shortly after Pennhurst was decided, the Supreme Court clarified that this notice requirement applies in the anti-discrimination context only to

3 Pennhurst might be compared to common-law doctrines that supply a defense to a breach-of-contract claim on the theory that no enforceable agreement was made in the first place. See Restatement (Second) of Contracts § 110 (1981) (statute of frauds); id. § 152(1) (mutual mistake); id. § 163 (material misrepresentation).

4 “violations not involving intentional discrimination.” Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 603 (1983) (opinion of White, J., announcing the judgment). No notice beyond the statutory text is required—and damages are always available—when there is “proof of intentional discrimination.” Id. at 600.

The Supreme Court has embraced and reiterated this principle in several cases. See Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 74 (1992) (explaining that under Pennhurst “remedies were limited … when the alleged violation was unintentional”); id. at 74-75 (“The point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. This notice problem does not arise in a case such as this, in which intentional discrimination is alleged.”) (citation omitted); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998) (“[R]elief in an action … alleging unintentional discrimination should be prospective only, because where discrimination is unintentional, it is surely not obvious that the grantee was aware that it was administering the program in violation of the condition.”) (internal quotation marks and alteration omitted); Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999) (noting that the Pennhurst “limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute” and that “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”); Barnes v. Gorman, 536 U.S. 181, 187 (2002) (“[A] recipient may be held liable to third-party beneficiaries for intentional conduct that violates the clear terms of the relevant statute, but not for its failure to comply with vague language describing the objectives of the statute.”) (citation omitted); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182

5 (2005) (“In Gebser, as in Davis, we acknowledged that federal funding recipients must have notice that they will be held liable for damages. But we emphasized that ‘this limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute.’”) (citations omitted) (quoting Davis, 526 U.S. at 642).

The district court did not address the distinction between intentional and unintentional conduct. It simply stated that “monetary relief is available in private suits under Title IX only if the defendant received adequate notice that it could be liable for the conduct at issue.” Soule ex rel. Stanescu v. Conn. Ass’n of Schs., Inc., No. 20-CV-201, 2021 WL 1617206, at *8 (D. Conn. Apr. 25, 2021). The district court then concluded that “[t]here can be no doubt that the clear notice required by Pennhurst is lacking here.” Id. That was erroneous because the district court applied the Pennhurst notice requirement without first considering whether the Policy was intentional conduct.

The district court acknowledged the plaintiffs’ argument that “repeated Supreme Court decisions have put educational institutions on notice that they could be subjected to private suits for intentional sex discrimination and that this liability encompasses diverse forms of intentional sex discrimination.” Id. at *10 (internal quotation marks and alteration omitted). Yet the district court interpreted the plaintiffs’ argument as addressing whether the CIAC “did receive the requisite notice.” Id. The district court failed to appreciate that the “notice problem does not arise in a case … in which intentional discrimination is alleged.” Franklin, 503 U.S. at 74-75.

III

In today’s opinion, the court does not address whether the Policy is intentional or unintentional conduct. See ante at 42 n.7. I

6 would hold that a recipient’s official policy is intentional conduct. For that reason, the Policy is not subject to the Pennhurst notice requirement.

A

The Supreme Court has explained that the intentional conduct inquiry asks whether the recipient engaged in “intentional conduct that violates the clear terms of the statute,” Davis, 526 U.S. at 642; see also Barnes, 536 U.S. at 187, or whether “a funding recipient intentionally violates the statute,” Jackson, 544 U.S. at 182. In applying the rule in the context of the civil rights statutes, the Court has said that the relevant distinction is between intentional and unintentional discrimination. See Franklin, 503 U.S. at 74-75 (“This notice problem does not arise in a case such as this, in which intentional discrimination is alleged.”) (emphasis added); Gebser, 524 U.S. at 287 (“[R]elief in an action … alleging unintentional discrimination should be prospective only, because where discrimination is unintentional, it is surely not obvious that the grantee was aware that it was administering the program in violation of the condition.”) (internal quotation marks and alteration omitted and emphasis added). In Guardians, the Court indicated that the distinction between unintentional and intentional discrimination is between “unintentional, disparate-impact discrimination,” on the one hand, and “deliberate racial discrimination,” on the other. 463 U.S. at 593 (opinion of White, J.).

The distinction between intentional and unintentional conduct may not be simple to apply in every case. But in this context, the Supreme Court has already answered the question: Official policies of recipients of federal funds qualify as intentional conduct under Title IX.

7 In Gebser, the Court explained that “[w]hen Congress attaches conditions to the award of federal funds under its spending power, U.S. Const., Art. I, § 8, cl. 1, as it has in Title IX and Title VI, we examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition.” 524 U.S. at 287 (citing Franklin, 503 U.S. at 74-75; Guardians, 463 U.S. at 596-98 (opinion of White, J.); Pennhurst, 451 U.S. at 28-29). We do so because of the “central concern” with “ensuring that ‘the receiving entity of federal funds [has] notice that it will be liable for a monetary award.’” Id. (quoting Franklin, 503 U.S. at 74). The Court said that if a recipient’s liability “rests on principles of constructive notice or respondeat superior, it will … be the case that the recipient of funds was unaware of the discrimination.” Id.

For that reason, the Court “fashioned” the “implied damages remedy” under Title IX along the same lines as the statute’s “express remedial scheme.” Id. at 290. Because the express remedial scheme was “predicated upon notice to an ‘appropriate person’” who received “an opportunity to rectify any violation,” the damages remedy would be subject to actual-notice and opportunity-to-cure requirements. Id. (quoting 20 U.S.C. § 1682). In other words, “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” Id. The response “must amount to deliberate indifference to discrimination” so as to parallel the “premise” of the administrative enforcement scheme that there be “an official decision by the recipient not to remedy the violation.” Id.

The Court confined the deliberate indifference framework to “cases like [Gebser] that do not involve official policy of the recipient

8 entity.” Id. In cases that do involve “official policy,” there is no reason to require notice, opportunity to cure, and deliberate indifference in order to establish the equivalent of “an official decision by the recipient.” Id. That is because an official policy already represents such an official decision, made intentionally by the recipient itself. Unlike rogue behavior by an employee, there is no problem of attribution to the recipient when the recipient itself has officially adopted a policy. See Jackson, 544 U.S. at 183 (explaining that retaliation is “intentional conduct that violates the clear terms of the statute” because “[i]t is easily attributable to the funding recipient, and it is always—by definition—intentional”).

In Gebser, the Court explained this framework by way of an analogy to 42 U.S.C. § 1983. See Gebser, 524 U.S. at 290-91. The “§ 1983 municipal-liability cases reveal how the standard changes when the claim involves official policy, although the underlying principle— liability only for intentional acts by the institution itself—remains the same.” Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007) (internal quotation marks, citation, and alteration omitted). Pursuant to § 1983, a plaintiff may sue any person acting “under color” of state law for a violation of a federal or constitutional right. 42 U.S.C. § 1983. 4 But a § 1983 claim is not available against a municipality—just as a Title IX claim is not available against an educational program receiving federal funds—unless the liability arises from the municipality’s “own official decision,” not “its

4 While a § 1983 claim is available against a state officer for the violation of a federal right, a Title IX claim is not available against an employee of a school because the employee is not an “education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). But both § 1983 and Title IX contemplate liability for the employing entity: the municipality in the § 1983 context and the recipient educational program under Title IX.

9 employees’ independent actions.” Gebser, 524 U.S. at 291. Municipal liability can be established by showing that the actions of the municipality “amount[ed] to deliberate indifference to the rights of persons with whom [its employees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Alternatively, the municipality may be liable if the plaintiff establishes that the municipality’s “official policy[] inflict[ed] the injury.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). In this way, under both § 1983 and Title IX, intentional conduct may be established by way of deliberate indifference to the acts of employees or by way of an official policy. Gebser and Davis involved the former. This case involves the latter.

For these reasons, three circuits have held, in the Title IX context, that the official acts—including policies—of a recipient of federal funds qualify as intentional conduct and are not subject to a further Pennhurst notice requirement. See Mansourian v. Regents of Univ. of Calif., 602 F.3d 957, 967 (9th Cir. 2010) (“[T]he Supreme Court has made clear that no notice requirement is applicable to Title IX claims that rest on an affirmative institutional decision.”); Simpson, 500 F.3d at 1178 (“[A] funding recipient can be said to have ‘intentionally acted in clear violation of Title IX’ when the violation is caused by official policy.”) (quoting Davis, 526 U.S. at 642); Pederson v. La. State Univ., 213 F.3d 858, 882 (5th Cir. 2000) (explaining that when it is “the institution itself that is discriminating” by “denying females equal athletic opportunity … [t]he proper test is not whether [the institution] knew of or is responsible for the actions of others” but whether it “intended to treat women differently on the basis of their sex by providing them unequal athletic opportunity”). I would join these circuits.

10 B

The dissent notes that “a Title IX recipient’s liability cannot turn solely on the ‘intentionality’ of its challenged action.” Post at 40. And that is true: there must be intentional conduct as well as knowing acceptance of a funding condition that the conduct violates. Because the CIAC Policy is intentional conduct, the remaining question is whether that conduct “violates the clear terms of the statute.” Davis, 526 U.S. at 642.

The Supreme Court has clarified that the “clear terms” inquiry is about ensuring that the statute clearly establishes a funding condition. In Barnes, the Court distinguished between “intentional conduct that violates the clear terms of the relevant statute,” on the one hand, and actions that “fail[] to comply with vague language describing the objectives of the statute,” on the other. 536 U.S. at 187; see also Pennhurst, 451 U.S. at 25 (identifying “[t]he crucial inquiry” as whether the statute “provid[es] clear notice” to a recipient that it, “by accepting funds under the Act, would indeed be obligated to comply with” a funding condition). Accordingly, conduct violates the “clear terms of the statute” when it contravenes a legal requirement articulated in the statute rather than a general statutory objective. 5

The “clear terms” requirement does not establish a standard resembling qualified immunity, pursuant to which a defendant will

5 The Supreme Court has not required clarity in the scope of the legal requirement as distinct from its existence. In Davis, the Court decided that Title IX provided clear notice for recipients to be liable for student-on- student harassment despite “a conflict in the Circuits” over the question, 526 U.S. at 637, and the opinion of four justices that the statute was insufficiently clear, see id. at 657 (Kennedy, J., dissenting) (objecting that “the majority finds statutory clarity where there is none” and “treats the issue as one of routine statutory construction alone”).

11 be liable only if his actions “violate[d] clearly-established rights of which an objectively reasonable official would have known.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (quoting Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006)). The “clear terms” requirement is satisfied if the statutory language creates enforceable legal rights; a plaintiff need not demonstrate that the rights are “clearly established” and that reasonable officials “would have known” about those rights.

In this case, the plaintiffs sued under Title IX, which prohibits an educational program receiving federal funds from “subject[ing] to discrimination” any person in relation to the program. 20 U.S.C. § 1681; Second Am. Compl. ¶ 33. As the dissent acknowledges, “the plain terms of Title IX place a duty on a funding recipient to not discriminate intentionally on the basis of sex.” Post at 39. That is a clear legal mandate, not “vague language describing the objectives of the statute.” Barnes, 536 U.S. at 187. Thus, if the Policy violates Title IX’s anti-discrimination provision on the merits, it violates the “clear terms of the statute.” Davis, 526 U.S. at 642. 6

6 The connection between the merits and the question of whether conduct violates the clear terms of the statute explains why “the Supreme Court cases applying Pennhurst to Title IX either begin with a merits analysis of whether the challenged conduct was prohibited or weave that analysis into considerations of notice.” Ante at 41 (majority opinion). The dissent cites cases from outside the Title IX context in which the relevant statutes had no “clear terms” authorizing a remedy at all, so whether the conduct violated such clear terms was beside the point. See, e.g., Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1576 (2022) (concluding that “emotional distress damages are not recoverable under … Spending Clause antidiscrimination statutes” because such “distress damages are [not] ‘traditionally available in suits for breach of contract,’ and [there is]

12 Even if we understood the “clear terms” requirement to involve notice beyond this low bar, the result would be the same. We have held that “[w]here Congress has explicitly directed the courts to create and administer a private right of action, judicial determination of the rules governing the scope of liability is itself, in effect, a clear statement by Congress.” Henrietta D. v. Bloomberg, 331 F.3d 261, 285 (2d Cir. 2003). In other words, the CIAC accepted federal funds “with the knowledge that the rules for [Title IX] liability will be subject to judicial determination.” Id. 7 That the CIAC was subject to conflicting guidance from the Department of Education on this issue, see Appellees’ Br. 62, made clear that the issue implicated Title IX and would ultimately be decided by a court.

I would hold that official policies of a recipient of federal funds qualify as intentional conduct. And if the CIAC Policy violates Title IX on the merits, then it violates the clear terms of the statute. For these reasons, the Pennhurst notice requirement does not bar the plaintiffs’ damages claim.

correspondingly no ground … to conclude that federal funding recipients have ‘clear notice’ that they would face such a remedy in private actions brought to enforce the statutes at issue”). 7 The Fourth Circuit relied on similar reasoning to conclude that Pennhurst did not bar damages in a transgender student’s lawsuit to access the boys’ bathroom. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 619 n.18 (4th Cir. 2020) (“Title VII has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. So too Title IX. And the Board knew or should have known that the separate facilities regulation did not override the broader statutory protection against discrimination. We reject the Board’s Pennhurst argument.”) (internal quotation marks and citation omitted).

13 IV

Even if the Policy somehow qualified as unintentional conduct and was subject to the Pennhurst notice requirement, the district court and the panel erred in holding that either the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), or appellate case law about bathroom access forecloses a finding that the CIAC was on notice that it needed to provide “equal athletic opportunity for members of both sexes,” 34 C.F.R. § 106.41(c).

Bostock did not establish that assigning sports teams based on biological sex would constitute discrimination, much less hold that “discrimination based on transgender status is generally prohibited under federal law.” Soule ex rel. Stanescu v. Conn. Ass’n of Schs., Inc., 57 F.4th 43, 56 (2d Cir. 2022). Bostock held that Title VII prohibits the firing of an employee based on transgender status because such discrimination would amount to discrimination based on biological sex. The Court explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock, 140 S. Ct. at 1741. It offered the hypothetical of “an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth” and “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” Id. at 1741-42. In reaching its conclusion, the Court accepted the premise that “sex” in Title VII refers “only to biological distinctions between male and female.” Id. at 1739; see also Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (“[S]ex,

14 like race and national origin, is an immutable characteristic determined solely by the accident of birth.”).

Moreover, there are important differences between the two statutes. While Title VII makes sex “not relevant to the selection, evaluation, or compensation of employees,” Bostock, 140 S. Ct. at 1741 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion)), the Title IX framework expressly allows a funding recipient to maintain separate sports teams based on sex, 34 C.F.R. § 106.41(b), provided that the recipient offers “equal athletic opportunity for members of both sexes,” id. § 106.41(c). In other words, “Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes.” Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 811 (11th Cir. 2022). In fact, the Title IX framework effectively requires a recipient to maintain separate sports teams. 8 Thus, while an employer risks Title VII liability when it

8 See, e.g., O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301, 1307 (1980) (Stevens, J., in chambers) (“Without a gender-based classification in competitive contact sports, there would be a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.”); Neal v. Bd. of Trs., 198 F.3d 763, 767 (9th Cir. 1999) (“Male athletes had been given an enormous head start in the race against their female counterparts for athletic resources, and Title IX would prompt universities to level the proverbial playing field.”); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175 (3d Cir. 1993) (“If, to satisfy [T]itle IX, all that the School District were required to do was to allow girls to try out for the boys’ teams, then it need not have made efforts … to equalize the numbers of sports teams offered for boys and girls.”); Cape v. Tenn. Secondary Sch. Athletic Ass’n, 563 F.2d 793, 795 (6th Cir. 1977) (“It takes little imagination to realize that were play and competition not separated by sex, the great bulk of the females would quickly be eliminated from participation and denied any meaningful opportunity for athletic

15 makes distinctions among employees based on sex, an education program risks Title IX liability when it fails to distinguish between student athletes based on sex. The division that the plaintiffs propose here—separating teams on the basis of sex—is what the Title IX regulations authorize. Bostock does not suggest that Title IX requires separating athletic teams on a different basis.

The district court cited several cases from other circuits for the proposition that the CIAC Policy was required by federal law. See Soule, 2021 WL 1617206, at *10 (“Courts across the country have consistently held that Title IX requires schools to treat transgender students consistent with their gender identity.”) (collecting cases); see also Soule, 57 F.4th at 55-56. Each of those cases concerns bathrooms rather than athletic competitions.

The circuits are split on the question of whether Title IX permits a school to maintain separate bathrooms based on biological sex. The Eleventh Circuit has held that “Title IX allows schools to provide separate bathrooms on the basis of biological sex.” Adams, 57 F.4th at 817. More importantly, bathrooms are not athletic competitions. The plaintiffs argue that allowing biological males to enter girls’ athletic competitions denied them “equal athletic opportunity,” 34 C.F.R. § 106.41(c), because it limited their opportunities for athletic achievement. The different circumstances and regulatory framework applicable to bathrooms does not answer that argument.

The context is important. “[T]hat a characteristic may be relevant under some or even many circumstances does not suggest any reason to presume it relevant under other circumstances where there is reason to suspect it is not. A sign that says ‘men only’ looks

involvement.”); see also United States v. Virginia, 518 U.S. 515, 533 (1996) (“Physical differences between men and women … are enduring.”).

16 very different on a bathroom door than a courthouse door.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 468-69 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part); see also Davis, 526 U.S. at 651 (“Courts, moreover, must bear in mind that schools are unlike the adult workplace.”). Bostock took this careful contextual approach. It had nothing to say about bathrooms. Bostock, 140 S. Ct. at 1753 (“[W]e do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”). Neither Bostock nor the case law about bathrooms tells recipients how to provide equal athletic opportunity in educational programs.

* * *

The merits question in this case has not yet been decided. Today, the court correctly holds that the district court erred in concluding that standing requirements and Pennhurst notice prevented that question from being addressed. I join its opinion. But I would also hold that the district court erred in its Pennhurst analysis by failing to consider whether an official policy was intentional conduct and by determining that inapposite case law foreclosed the conclusion that the CIAC had adequate notice.

17 NATHAN, Circuit Judge, joined by ROBINSON, Circuit Judge, concurring:

Stepping back from some of the abstract legal concepts at issue in this

appeal, it is important to say that this case is, at root, about kids who want to

compete in high school track and field. At the time this lawsuit was brought,

Plaintiffs were such kids. So were Intervenors Andraya Yearwood and Terry

Miller. Andraya and Terry competed on the girls’ track-and-field teams at their

respective high schools when they were teenagers. Before that, in the summer

before her eighth-grade year, Andraya came out to her parents as transgender and

began receiving social and medical support for her transition. By the time she

started at Cromwell High School, she was known to her family and peers as a girl,

participating in all aspects of high school life consistent with her gender identity.

Terry recalls being aware of her female gender identity as early as the fifth

grade, but she did not have the language or support to understand what it would

take to live authentically. Terry finally began to live her life as a girl after coming

out in the tenth grade. And just like Andraya, Terry was known and accepted as

a girl by her family, friends, teammates, and coaches at Bloomfield High School.

Andraya and Terry presumably competed in high school track and field for

the same reasons as Plaintiffs: “because they love to run; because being a part of a

1 team provided them a supportive community and created lasting social and

emotional relationships; because training and competition allowed them to prove

their athletic skills, challenge themselves, and release stress and anxiety; and

because athletics gave them a place to be themselves and thrive.” Intervenors’ Br.

at 1. Indeed, these benefits can have special importance for transgender students,

“who are at heightened risk for feelings of isolation, discrimination, harassment,

and low self-esteem.” Am. Br. of the Nat’l Women’s L. Ctr. & 34 Additional Civ.

Rts. & Other Orgs., at 4.

In this case, Plaintiffs claim that it was unfair for them to have to compete

against girls who are transgender and they challenge the validity of the

Connecticut policy that allowed Andraya and Terry to play on their respective

school’s girls sports teams, consistent with their gender identity. Although that

policy’s legality is in dispute, I want to be perfectly clear that, as the entire Court

has recognized, see Maj. Op. at 34; Diss. Op. at 23, “Andraya and Terry followed

all the rules of competition, on and off the field”; put simply, they themselves

“have done nothing wrong.” Intervenors’ Br. at 1.

This brings me back to the standing issue our Court resolves today—

namely, whether Plaintiffs have standing to challenge the Connecticut policy and

2 seek monetary and injunctive relief. The interest that transgender students like

Andraya and Terry have in participating in high school athletics compels me to

consider how I would resolve this standing question if the shoe were in fact on the

other foot. See Maj. Op. at 28-29. Imagine a cross-country race in which all athletes

run together, but girls’ and boys’ times and placements are reported separately.

Presume the school district refuses to list the times and placements of transgender

girls as girls, listing them instead as boys. As a result of that policy, a girl who is

transgender is deprived of the higher placement and title she would have received

had she been listed as a girl. Now imagine that transgender girl brings suit

alleging that the school district had violated Title IX by refusing to list her

placement and times based on her established gender identity. She seeks money

damages, but she also seeks an injunction to correct those records in order to

accurately reflect her athletic achievement.

In my view, if you would conclude that this hypothetical plaintiff would

have standing to seek such injunctive relief, then you should conclude the same as

to Plaintiffs in this case. The majority’s holding that the public recognition of

students’ athletic achievements, as reflected in the records documenting those

achievements, is a cognizable interest in the eyes of the law ensures that federal

3 courts are accessible not only to Plaintiffs in this case, but litigants like Terry and

Andraya in some future case. For this reason, it is not surprising that Terry’s and

Andraya’s own lawyers suggested at oral argument that we could conclude, as the

majority has, that Plaintiffs do have standing. See Transcript at 63-64, 66, 68, 69,

71-72.

Of course, standing conclusions only get litigants in the courthouse door.

On remand, the district court will determine if Plaintiffs have stated a claim for a

violation of Title IX. If they have, the district court will assess whether Plaintiffs

are entitled to any remedies. These are highly contested questions. The merits

issue includes consideration of the meaning of the word “sex” as contained in Title

IX, implementing regulations, and policy interpretations. It will also include

consideration under those authorities of what constitutes denial of equal athletic

opportunity. Moreover, should the district court reach the question of injunctive

relief, it will have to consider how to balance principles of fairness and equality.

It bears emphasis that, as the majority explains, the Court’s decision today

expresses no views on these contentious issues. See Maj. Op. at 44-45.

Because the issue the Court resolves is standing, I have done my level best

to put any preliminary merits views aside. Noteworthy though is that the merits

4 question in this case is not whether Title IX requires schools to allow transgender

girls like Andraya and Terry to compete on girls’ sports teams. 1 Rather, the

question is whether Title IX actively prohibits schools from doing so. Put

otherwise, to prevail on the merits, Plaintiffs must show that Title IX requires

schools to exclude transgender girls from competing on girls’ sports teams

consistent with their established gender identity. This is an interpretation of Title

IX that no court has ever adopted—a fact that remains true after our decision

today. Nothing in the Court’s decision adopts Plaintiffs’ construction of Title IX.

1 One of our sister circuits has held that a categorical ban on the participation of transgender women and girls in women’s student athletics likely violates the Equal Protection Clause. See Hecox v. Little, 79 F.4th 1009, 1016 (9th Cir. 2023) (affirming the district court's grant of preliminary injunctive relief because the law “categorically bans transgender girls and women at all levels from competing on female, women, or girls teams” and the state “failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes” (cleaned up)). A similar law enacted in West Virginia is currently enjoined pending review by the Fourth Circuit. See B.P.J. v. W. Virginia State Bd. of Educ., 2023 WL 2803113, at *1 (4th Cir. Feb. 22, 2023) (granting a motion for injunction pending appeal after the district court determined that West Virginia’s law is neither unconstitutional nor violates Title IX). 5 LOHIER, Circuit Judge, concurring in part and dissenting in part:

I.

I concur in Part I of the majority opinion insofar as it concludes that

Plaintiffs have standing to sue for injunctive relief to alter their own public

athletic track records “related to the particularized injury they allege.” Majority

Op. 36. As I understand it, the particularized alleged injury in this case arises

only from the public records reflecting Plaintiffs’ final placements in specific

races at specific track meets at which they competed against and finished behind

Intervenors.

The majority opinion acknowledges two further limitations that bear

repeating. First, Plaintiffs “do not have standing to seek remedies for

generalized grievances about the CIAC Policy.” Majority Op. 31. Second, “the

fact that a plaintiff has standing to pursue her claim does not mean that she is

entitled to” any relief. 1 Majority Op. 35 (emphasis added and cleaned up)

1 As some of my dissenting colleagues point out, “the preferable remedy in a case such as this is the more traditional one of monetary relief.” Dissenting Op. 25. I completely agree. But the fact that money damages are the preferable remedy in this case has nothing to do with Plaintiffs’ standing to pursue the more difficult course of injunctive relief. (quoting E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014)). Standing

opens the courthouse door but offers nothing more.

A final point of agreement about standing in this case is simple but

important: the broader approach to redressability that our Court announces

today is not limited to Title IX cases. It extends just as forcefully to cases arising

under Title VII and other federal civil rights statutes. It is precisely because we

are not free to apply different standing doctrines to different plaintiffs that none

of my colleagues disagree with me on this point.

II.

For the reasons stated by Judge Chin, I would affirm the District Court’s

dismissal of Plaintiffs’ claims for nominal money damages under Pennhurst State

School & Hospital v. Halderman, 451 U.S. 1 (1981). As Part III of Judge Chin’s

dissenting opinion explains, the majority opinion’s take on both Pennhurst and

the District Court’s opinion is simply wrong.

In particular, the majority opinion’s central criticism that the District Court

misapprehended its discretion to address the merits of Plaintiffs’ Title IX claims

before dismissing their claims for monetary relief based on the Pennhurst bar

does not reflect a fair reading of the District Court’s decision. I therefore agree

2 with the dissent that the very able and experienced District Judge fully

understood his discretion to consider the merits of the Title IX claims, but elected

instead to determine that Pennhurst barred those claims – a far easier and more

straightforward issue in this case. Dissenting Op. 27–37. As to that

determination, the District Court and the dissent are right that Defendants could

not possibly have been on notice of any Title IX violation. To the contrary, every

indication was that Defendants risked a lawsuit had they not adopted the CIAC

policy. See Dissenting Op. 38–48.

In addition, much (perhaps all) of the majority’s discussion of the

Pennhurst sequencing issue is unnecessary to resolve this appeal. Let me briefly

explain why. The majority opinion concludes that the District Court

misapprehended its authority to sequence Pennhurst and the merits. Because the

majority opinion also (again rightly, in my view) vacates the District Court’s

judgment that Plaintiffs lacked standing to seek injunctive relief, it compels the

District Court to consider the merits of Plaintiffs’ claims for injunctive relief

under Title IX. The majority’s remand on the Pennhurst issue is thus supported

entirely by its conclusion that the District Court should revisit the sequencing

now that it must consider the merits. Any discussion of the factors that might

3 limit the District Court’s discretion as to which issue to take up first – the merits

or the lack of notice – is therefore non-precedential dicta.

Finally, because standing is “a sufficient ground for deciding this case, . . .

the cardinal principle of judicial restraint — if it is not necessary to decide more,

it is necessary not to decide more — counsels us to go no further” and to avoid

prematurely deciding the Pennhurst issue. PDK Labs. Inc. v. U.S. DEA, 362 F.3d

786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the

judgment). The District Court will now address the merits of Plaintiffs’ claims

for damages whether or not we instruct it to do so “before or in tandem with” its

analysis of notice under Pennhurst. Majority Op. 41. We know this because the

merits analysis applicable to the claim for injunctive relief applies equally to

Plaintiffs’ damages claims. Accordingly, the majority‘s discussion of Pennhurst

contributes nothing of practical value to the resolution of this case. If the District

Court determines that the claims are meritless, there will be no need to address

the Pennhurst sequencing issue. If, on the other hand, the District Court

determines that the claims have some merit, nothing in the majority opinion

forecloses the conclusion that the damages claims are nevertheless barred under

Pennhurst. Nor, as I read it, does the majority opinion prohibit the District Court

4 from even more clearly acknowledging its discretion with respect to the

Pennhurst sequencing issue and then simply reaffirming its prior decision as to

the lack of the notice to Defendants in this case.

For these reasons I concur in Part I of the majority opinion and in Part III

of Judge Chin’s dissenting opinion.

5 No. 21-1365 Soule v. Connecticut Association of Schools, Inc.

PÉREZ, Circuit Judge, concurring in part and dissenting in part:

There are at least three issues on which the majority opinion and

dissenting opinion in this case are in full agreement: (1) the Intervenors—girls

who are transgender who competed in the high school track-and-field

competitions at issue—did nothing wrong; (2) Plaintiffs have adequately pled a

concrete, particularized injury in fact with respect to their denial of equal athletic

opportunity and concomitant public recognition; and (3) Plaintiffs’ alleged

injuries may, at least for the purposes of the standing inquiry, be redressable

through nominal or compensatory damages under Title IX.

I join Part II of the dissenting opinion because I believe that Plaintiffs

have failed to allege injuries that are redressable through injunctive relief. I join

Parts I.A, I.B.I., and II of the majority opinion because I believe the district court

should have considered the merits of Plaintiffs’ Title IX claims before or

alongside the question of whether Defendants were on adequate notice under

Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1982), to expose them

to potential damages liability. I write below to briefly explain my views. I. Standing

The instant dispute in our Court as to standing is a narrow one.

Plaintiffs allege two injuries arising from Defendants’ purported violations of

Title IX: a denial of equal athletic opportunity and a denial of concomitant public

recognition for their success in high school track-and-field competitions. The

majority opinion and dissenting opinion agree that Plaintiffs have adequately

alleged an injury in fact that is causally connected to the Connecticut

Interscholastic Athletic Conference (“CIAC”) policy and could be redressable

through nominal or compensatory damages. They disagree only as to whether

these alleged injuries are plausibly redressable through injunctive relief as well.

A. Plaintiffs Have Standing to Seek Damages

Across the opinions in this appeal, this Court speaks in one voice

that denial of equal opportunity in violation of an antidiscrimination statute is

clearly a cognizable injury in fact. The majority opinion points out that “[t]he

Supreme Court has identified ‘discriminatory treatment’ as an example of a

‘concrete, de facto, injur[y].’” Maj. Op. at 21 (quoting TransUnion LLC v. Ramirez,

141 S. Ct. 2190, 2205 (2021)). And the dissenting opinion similarly finds that “the

denial of equal athletic opportunity under Title IX” is a potential harm “sufficient

to establish injury in fact.” Diss. Op. at 6. That this Court agrees that Plaintiffs 2 have adequately pled an injury in fact is an important reaffirmation of our

standing precedent because, as the majority opinion notes, “questions of

standing . . . have broad implications for all manner of civil rights litigation and

civil rights plaintiffs,” and “[p]recedent and principle require that we proceed

cautiously before limiting access to courts and remedies.” Maj. Op. at 5.

Because all parties, as well as the majority opinion and dissenting

opinion, agree that damages would provide some relief, See Maj. Op. at 24; Diss.

Op. at 26, I will not belabor the discussion on damages.

B. Plaintiffs’ Requested Injunctive Relief Fails to Meet the Low Bar for Redressability

In addition to seeking damages, Plaintiffs also requested that the

district court remedy their alleged injuries by issuing an injunction to “correct

the records” of high school track-and-field competitions in which girls who are

transgender competed by “reallocating” relevant titles and placements to girls

who are not transgender. Appellants’ En Banc Br. at 46–47. As the majority

opinion notes, standing “is not dispensed in gross; rather, plaintiffs must

demonstrate standing for each claim that they press and for each form of relief

that they seek.” Maj. Op. at 19 (quoting TransUnion, 141 S. Ct. at 2208). Plaintiffs

cannot do so as to the injunctive relief they seek.

3 In general, the hurdle a plaintiff must clear to demonstrate that an

injury is redressable through injunctive relief is low. Plaintiffs must establish

only that the “risk [of injury] would be reduced to some extent if [Plaintiffs]

received the relief they seek.” Massachusetts v. EPA, 549 U.S. 497, 526 (2007); see

also Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021) (“To demonstrate

standing, the plaintiff must . . . seek a remedy that redresses that injury.”). The

majority opinion points out that “Plaintiffs ‘need not show that a favorable

decision will relieve [their] every injury.’” Maj. Op. at 26 (quoting Larson v.

Valente, 456 U.S. 228, 243 n.15 (1982)). A remedy that “‘would serve to . . .

eliminate any effects of’ the alleged legal violation that produced the injury in

fact” is sufficient. Maj. Op. at 23 (quoting Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 105–06 (1998)). Thus, in the case before us, “Article III only requires that

some form of altering the records ‘would at least partially redress’ the alleged

injury.” Maj. Op. at 26 (quoting Meese v. Keene, 481 U.S. 465, 476 (1987)).

Plaintiffs fall far short of meeting even this low bar. The dissenting

opinion rejects injunctive relief because the relief requested is too speculative. I

would go even further to say that the Plaintiffs have set up their alleged injuries

in such a way that makes injunctive relief impossible. However low the bar for

4 the redressability of injunctive relief may be, the form of relief Plaintiffs actually

request in this case is too fanciful and reliant on fiction to confer standing.

1. Plaintiffs’ Alleged Denial of Equal Athletic Opportunity Could Be Redressed Only by Re-Running the Races—A Form of Relief that is Impossible to Grant Here

As the dissenting opinion acknowledges, when Plaintiffs initially

filed their lawsuit as high school students in 2020, forward-looking injunctive

relief that would address their alleged ongoing injuries was indeed available to

them. See Diss. Op. at 7. At that time, Plaintiffs could have theoretically received

an injunction enjoining the CIAC policy moving forward, and it certainly was

“likely that granting [injunctive relief] would ‘eliminate [some] effects of’ the

alleged legal violation that produced the injury in fact.” Maj. Op. at 27-28

(quoting Steel Co., 523 U.S. at 106). However, before any alleged injuries could be

remedied, all Plaintiffs graduated from high school and all at-issue competitions

were completed, placing their alleged injuries of denial of equal athletic

opportunity in high school competitions firmly in the past. See Maj. Op. at 24-25

(“Plaintiffs’ claim is based on a completed violation of a legal right . . . .” (citation

and internal quotation marks omitted)).

It is axiomatic that injunctive relief is forward-looking. See Texas v.

Lesage, 528 U.S. 18, 21 (1999). At this point in time, then, the only injunctive relief 5 that would redress the harm to Plaintiffs’ equal athletic opportunity would be

“ordering do-overs of the races.” Diss. Op. at 8.

But Plaintiffs did not request that the races at issue be re-run, and for

good reason—doing so would be impossible, both jurisdictionally and

practically. An injunction ordering the races to be re-run would require the

district court to compel countless individuals—mostly non-party competitors,

coaches, and race officials now residing far and wide—to gather and reenact a

series of years-past races in different venues across the state of Connecticut.

2. Plaintiffs Instead Seek to Redress their Alleged Denial of Public Recognition through a Contrived Form of Injunctive Relief Reliant on Fiction

Because none of the Plaintiffs are still in high school, they instead

ask the court to travel back in time and retroactively declare them high school

track-and-field champions. This theory of injury and relief immediately

descends into contortions and inconsistencies.

Plaintiffs specifically request that public records of past high school

competitions be altered to redress alleged ongoing harm resulting from their lack

6 of public recognition for their high school achievements. 1 In doing so, Plaintiffs

essentially ask the district court and this Court to pretend that the impossible was

done—that the races have been re-run without the participation of girls who are

transgender. Plaintiffs then expect the court to alter the public records of these

races based on who Plaintiffs contend would have won had Intervenors Andraya

Yearwood and Terry Miller not competed. See Appellants’ En Banc Br. at 19–20.

This attempt to retrofit a forward-looking remedy onto a past injury

would require the district court to contort itself into knots and hold irreconcilable

sets of facts as true. Any resulting injunction would be the product of pure

conjecture. To elaborate, Plaintiffs allege that, but for the CIAC policy permitting

girls who are transgender to participate in girls’ track-and-field events, every at-

issue preliminary race would have advanced a different slate of competitors to

an at-issue final, resulting in differently run races with different outcomes. 2 That

is, scores of qualifying races would have been run with different slates, yielding

1 Plaintiffs also request that the district court order Defendants to alter “non-public” records related to their high school track-and-field competitions. To the extent such records exist, correction of a non-public record inherently cannot provide any relief for an alleged injury in the form of lack of public recognition. 2 See Appellants’ En Banc App’x at 150 ¶ 78 (alleging at least 85 different opportunities

where runners would have advanced to higher level competitions but for Intervenors Yearwood and Miller’s participation); id. at 153 ¶ 89 (alleging Miller’s participation in girls’ events “immediately and systematically deprived female athletes of opportunities to advance and participate in state-level competition”). 7 different results and advancing different runners to successive races, which

themselves would have been run differently and advanced different runners to

championship races, and so on and so forth. As just one of many examples,

Plaintiffs allege that, “[b]ut for CIAC’s policy, Plaintiff Selina Soule . . . would

have advanced to the next level of competition in the [2019 CIAC] indoor state

championship 55m preliminary race and competed for a spot at the New

England Championship.” Appellants’ En Banc App’x at 155 ¶ 92. According to

Plaintiffs, the CIAC’s policy permitted Yearwood and Miller to edge Soule out of

the 2019 CIAC State Open Championship, thereby depriving Soule of an

opportunity to run in (and perhaps win) the 2019 CIAC 55-meter indoor state

championship. In their next breath, however, Plaintiffs also allege that, “[b]ut for

CIAC’s policy, Plaintiff Chelsea Mitchell would have placed first in the 55m at

the indoor state championship, been named State Open Champion, received a

gold medal instead of a bronze medal, and received public recognition of her

achievements.” Id. at 155 ¶ 93. But winning a race is a mutually exclusive

achievement—it cannot be simultaneously true that but for the CIAC policy,

Soule could have won that race and that Mitchell definitively would have won it.

8 Track-and-field competitions are inherently unpredictable events.

Absent Yearwood and Miller’s participation, every at-issue race would have

been run with a different slate of competitors, which could have affected other

variables such as lane placements, athlete reaction times, and false starts. 3 This

unpredictability is evident in this case, as Plaintiffs Smith and Mitchell in fact

outperformed Yearwood and Miller on many occasions over the course of their

high school careers. See Intervenors’ En Banc Br. at 14–17 (outlining record of

numerous instances where Plaintiffs defeated Yearwood or Miller in individual

races). Notwithstanding Plaintiffs’ specific allegations that the results of

counterfactual races are inherently uncertain, such that Soule or Mitchell could

have prevailed in a but-for world, they ask the court to wade into this deep

uncertainty by seeking a remedy to “correct the records and give credit and/or

titles” for scores of counterfactual races.

3 Academic literature has suggested that these variables significantly affect the outcome of track-and-field sprint competitions. See, e.g., Espen Tønnessen, Thomas Haugen & Shaher A I Shalfawi, Reaction Time Aspects of Elite Sprinters in Athletic World Championships, J. Strength & Conditioning Rsch., April 2013, at 885–92 (observing that reaction time can vary between competitions and between rounds of an individual competition); Aditi S. Majumdar & Robert A. Robergs, The Science of Speed: Determinants of Performance in the 100m Sprint, 6 Int’l J. of Sports Sci. & Coaching, no. 3, 2011, at 485 (observing differences in athlete reaction time based on lane placement); Chris Englert et al, The Effect of Ego Depletion on Sprint Start Reaction Time, 36 J. Sport & Exercise Psych. 506 (2014) (observing unpredictable nature of false start penalties). 9 The majority opinion presents its own hypothetical, suggesting that

“if some other athletic conference adopts a policy that, unlike the CIAC Policy,

categorizes transgender girl athletes as boys in their public records of athletic

accomplishment,” girls who are transgender “would have standing to seek to

have those public records altered to indicate their alleged accurate athletic

achievement.” Maj. Op. at 28. Indeed, if the girls who are transgender in the

majority opinion’s hypothetical were still high school athletes alleging an

ongoing harm, they would certainly have standing to pursue forward-looking

injunctive relief of some kind. No argument there. This hypothetical is of

limited use, however, in the case actually before us. The majority opinion’s

hypothetical competitors did not ask the Court, as Plaintiffs in this appeal do, to

retroactively reconstruct the results of a race that never actually happened.

Of course, courts often must engage with hypotheticals or imagine

fact patterns that have not materialized, and alteration of public records will

most certainly be a plausible form of relief for standing purposes in many

circumstances. But just because record alteration could be a meaningful theory

of redress in some alternative situation does not make it so in this case. Plaintiffs

also may be correct that “the reallocation of records and medals” in this manner

10 is “commonplace” in sports. Appellants’ En Banc Br. at 51. However, unlike an

athletics association operating according to its own internal rules, federal courts

are bound by Article III’s standing requirement. The fact that athletics

associations have taken such actions in the past according to their own internal

rules does not relieve Plaintiffs of their burden of establishing “the nexus

between relief and redress” for the purposes of Article III standing. Heldman ex

rel. T.H. v. Sobol, 962 F.2d 148, 157 (2d Cir. 1992). 4

Our precedent and the majority opinion are crystal clear that it is

far easier for a plaintiff to satisfy standing burdens than to demonstrate

entitlement to a remedy. A plaintiff has much leeway in bringing cases that will

get heard on the merits. Similarly, our precedent does not limit a court’s

equitable power to only the relief that a plaintiff requests. And courts’ equitable

powers permit and even demand creativity, novelty, and imagination in

fashioning remedies. However, Article III limits federal courts’ equitable powers

to relief that would at least partially redress a party’s injuries. Plaintiffs in this

4 For reasons capably pointed out by the dissenting opinion, Plaintiffs’ pleadings also do not explain how retroactively stripping Yearwood and Miller of their placements and reallocating spots in championship races would provide meaningful public recognition to individuals who are now several years removed from competing in high school track-and-field. See Diss. Op. at 17–19. 11 case fail to demonstrate how their contrived and fictitious theory of relief, which

would require the court to reconstruct the results of counterfactual races

involving multiple participants who have long since graduated from high school,

would even partially redress an injury.

Judge Menashi’s concurring opinion suggests that “it may be

possible to preserve [Yearwood and Miller’s] records while providing an

appropriate recognition to the plaintiffs, perhaps in two different categories.”

Conc. Op. of Menashi, J., at 3. This suggestion falls into the same pitfalls as

Plaintiffs’ own requested injunction. What would “an appropriate recognition”

consist of, other than a judicial declaration that another individual could have

won the race had Yearwood or Miller not competed? And how could such a

judicial declaration account for the fact that multiple individuals, including in

many circumstances multiple Plaintiffs, competed in each of the at-issue races

and hypothetically could have won but for the CIAC policy?

The awkwardness of this case’s pleadings stems from Plaintiffs’

attempt to retrofit a forward-looking remedy onto a past injury. The bar for

redressability is indeed low—but at some point, a theory of injunctive relief

12 becomes too fanciful and unrealistic for a court to credit. This case has reached

that point.

On the question of whether Plaintiffs are potentially entitled to

damages under Title IX, I would hold that the district court erred in resolving the

question of notice under Pennhurst before analyzing the merits of Plaintiffs’

Title IX claims in this matter. I acknowledge the dissenting opinion’s thoughtful

observation that courts conduct Pennhurst sequencing in different ways and no

precedent explicitly prohibits assessing notice before considering merits. See

Diss. Op. at 31-32. But in this particular case, as Plaintiffs allege, any requisite

notice would likely stem from the text of Title IX itself and the statute’s

implementing regulations. Thus, some interpretation of Title IX would appear

necessary to determine what notice Defendants had. The notice and merits

inquiries are thus intertwined, and the district court erred in considering notice

to the exclusion of merits.

The Supreme Court has conducted Pennhurst sequencing in a variety

of ways. For example, it has sometimes considered merits first when looking at a

claim for monetary damages under a Spending Clause statute. See, e.g., Jackson v.

13 Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (finding that “[r]etaliation

against a person because that person has complained of sex discrimination is . . .

intentional sex discrimination encompassed by Title IX’s private cause of action”

before proceeding to determine whether Defendant was on notice that their

conduct violated Title IX). In other situations, it has merged the merits and

notice inquiries. See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629, 643 (1999) (“We consider here whether the misconduct identified . . .

amounts to an intentional violation of Title IX, capable of supporting a private

damages action . . . . Additionally, the regulatory scheme surrounding Title IX

has long provided funding recipients with notice that they may be liable for their

failure to respond to the discriminatory acts of certain nonagents.”). However,

the Supreme Court has rarely considered notice first to the exclusion of merits

because notice is, in most cases, a function of merits: The statutory text and

implementing regulations typically constitute a funding recipient’s notice of

funding conditions. See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548

U.S. 291, 296 (2006) (“In considering whether the [Spending Clause statute]

provides clear notice, we begin with the text. . . . ‘[C]ourts must presume that a

14 legislature says in a statute what it means and means in a statute what it says

there.’” (quoting Ct. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992))).

The implied rule extending from that line of cases is thus quite plain:

When the alleged notice arises from the actual text of a Spending Clause statute,

a court generally cannot consider whether a funding recipient was on notice

without also analyzing whether the text of the Spending Clause statute prohibits

the at-issue conduct.

The dissenting opinion points to several cases in which courts have

considered notice before merits. See Diss. Op. at 32. None of these cases,

however, required interpretation of statutory or regulatory text because the at-

issue Spending Clause statutes were silent as to available remedies. For example,

in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022), the Supreme

Court made clear that it would have started its Pennhurst analysis with the merits

if it had text to interpret. Instead, the Court found that “[b]ecause the statutes at

issue are silent as to available remedies, it is not obvious how to decide whether

funding recipients would have had the requisite ‘clear notice regarding the

liability at issue in this case.’” Id. at 220.

15 In my view, the merits and notice inquiries in this case are indeed

intertwined, and the district court should not have considered notice to the

exclusion of merits. On remand, the district court should reconsider its

Pennhurst holding on a fuller record. As the majority opinion points out, it is not

clear whether the district court fully understood that resolution of Pennhurst

notice is not a prerequisite to merits analysis. Maj. Op. at 39. Nor did it seem to

understand that Pennhurst notice could be a function of merits analysis. Indeed,

Title IX and its implementing regulations give the district court an ample starting

point for determining whether Defendants “had adequate notice that they could

be liable for the conduct at issue.” Davis, 526 U.S. at 640. Plaintiffs recognized as

much, as their pleadings “argue that the requisite notice stems from the statutory

text itself,” and not from “a judicial decision or agency guidance.” Maj. Op. at

42. Given the text of the statute itself and the context of Plaintiffs’ claims and

allegations regarding notice, it is appropriate to remand for the district court to

consider the merits of the Title IX claim and determine whether Plaintiffs could

be entitled to nominal or compensatory damages. 5

5 The merits of Plaintiffs’ Title IX claims are rightly a question for the district court in the first instance. In analyzing whether CIAC was on notice that its policy could violate Title IX, however, Judge Menashi’s concurring opinion makes a number of statements about the law

16 * * *

The record in this case clearly indicates that Yearwood and Miller

followed every rule in place in Connecticut track and field at the time. Even the

majority opinion contemplates that any reallocation of titles and placements

would necessarily involve denying Yearwood and Miller their titles and

regarding inclusion of students who are transgender in schools and sports that merit a response. See Conc. Op. of Menashi, J., at 14-17. Near-universal authority suggests that Title IX permits or even requires funding recipients to accommodate students who are transgender according to their gender identities. See, e.g., A.C. by M.C. v. Metropolitan Sch. Dist. of Martinsville, 75 F. 4th 760, 771 (7th Cir. 2023) (finding plaintiffs had demonstrated a likelihood of success on the merits that two school districts’ “refusal to grant gender-affirming facility access to the plaintiffs amounts to discrimination on the basis of sex.”); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 (4th Cir. 2020) (“Unlike the other boys, [plaintiff] had to use either the girls restroom or a single-stall option. In that sense, he was treated worse than similarly situated students.”), cert. denied, 141 S. Ct. 2878 (2021); Parents for Priv. v. Barr, 949 F.3d 1210, 1228 (9th Cir. 2020) (“[J]ust because Title IX authorizes sex-segregated facilities does not mean that they are required, let alone that they must be segregated based only on biological sex and cannot accommodate gender identity. Nowhere does the statute explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity.”), cert. denied, 141 S. Ct. 894; Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir. 2018) (“We . . . agree with the School District’s position that barring transgender students from restrooms that align with their gender identity would itself pose a potential Title IX violation.”), cert. denied, 139 S. Ct. 2636 (2019); see also Bostock v. Clayton County, 140 S. Ct. 1731, 1737, 1744 (2020) (interpreting Title VII’s identical prohibition of discrimination “on the basis of sex” as prohibiting discrimination on the basis of transgender status). The Eleventh Circuit stands alone in holding that Title IX does not require school districts to allow students who are transgender to use the bathroom of their choice. Adams by and through Kasper v. Sch. Bd. of St. John’s Cnty, Florida, 57 F.4th 791, 812 (11th Cir. 2022). And even if this court were to adopt the Eleventh Circuit’s view of Title IX as it pertains to bathroom use, the Eleventh Circuit’s holding in Adams would not necessarily affect CIAC’s policy in the case before us today. Holding that a school need not accommodate students who are transgender according to their gender identity in order to comply with Title IX is qualitatively different than holding that a school cannot do so.

17 placements and could be an overreach of a court’s equitable power. However, in

my view, Plaintiffs’ claim for injunctive relief fails before reaching the question of

whether such an injunction would be just and equitable because Plaintiffs

request relief that would not redress their alleged injuries and is impossible to

grant. For this reason, I would find that Plaintiffs lack standing to pursue their

claims for injunctive relief.

The district court now must address complicated questions about

the merits of Plaintiffs’ Title IX claims, whether damages are available, and

whether Defendants were on notice that their policy could be in violation of

Title IX. Ensuring that people who are transgender are able to exercise their

inalienable rights to life, liberty, and the pursuit of happiness will continue to

generate nuanced legal and policy questions. The answers that courts and

policymakers come to will not spur universal agreement.

As our country grapples with these questions, the language we use

matters deeply, because our choice of words reflects the decency and humanity

we extend to people who are transgender. 6 In a recent national survey of

6 In the proceedings below, the district court required Plaintiffs’ counsel, as a matter of “civility” and “respect[],” to refrain from referring to Yearwood and Miller as “males” or “male athletes” rather than, for example, “transgender females” or “transgender athletes.” See App’x

18 transgender and non-binary youth, 64% of all respondents reported being the

subject of discrimination due to their gender identity and 27% reported being

physically threatened or harmed due to their gender identity. Am. Br. of the

Trevor Project at 5-6 (citations omitted). And while the case before us is about

high school sports, the discrimination people who are transgender face in our

country today certainly does not end at high school graduation. A recent

analysis of the National Crime Victimization Survey found that transgender

adults are more than four times as likely to be the victims of violent crime as

adults who are not transgender. Andrew Flores et al, Gender Identity Disparities

in Criminal Victimization: National Crime Victimization Survey, 2017-2018, 111

American J. of Pub. Health, no. 4, 2021, at 726.

I bring these statistics up not to suggest that they should weigh on

the outcome of this particular case, but to urge all participants in this ongoing

104-09. In their brief before the three-judge panel of this Court, Plaintiffs argued that the district court doing so formed a basis for reassignment on remand. The Court today denies that request. See Maj. Op. at 10 n.1. The district court did not exhibit bias, prejudge the merits, nor abuse its discretion in requiring counsel to refer to parties consistent with their gender identity. As many other courts have, see, e.g., Bostock, 140 S. Ct. 1731 (Gorsuch, J.); L.W. v. Skrmetti, 73 F.4th 408 (6th Cir. 2023) (Sutton, C.J.); Grimm, 972 F.3d 586 (Floyd, J.), the majority and dissenting opinions of this Court refer to litigants such as Yearwood and Miller consistent with their gender identity. 19 national discussion to be thoughtful, respectful, and responsible in the words we

choose and the reactions we offer.

20 21-1365 (en banc) Soule ex rel. Stanescu v. Connecticut Association of Schools, Inc.

MERRIAM, Circuit Judge, concurring in part and dissenting in part:

These plaintiffs lack standing to bring a claim for the injunctive relief sought in their

complaint. I fully join the thoughtful dissenting opinion as to that issue.

However, given the now-inevitable remand of this case to the District Court, I depart

from the dissenting opinion’s conclusion that we should affirm the District Court’s

dismissal of the claims for damages under Pennhurst. On remand, I see no reason not to

permit the District Court to reconsider its Pennhurst holding on a fuller record, in

conjunction with any merits determinations it may reach. As the majority opinion

recognizes, it is not clear whether the District Court fully understood its discretion to reach

the merits of plaintiffs’ claims without first considering the Pennhurst bar. It is

understandable why the District Court may have felt compelled to address the Pennhurst

bar immediately, once it had concluded (rightly) that plaintiffs lacked standing to seek

injunctive relief. But the District Court was not required to reach that issue at that time,

and it may consider the Pennhurst bar at any stage of the litigation. I therefore concur with

the majority opinion in that regard.

Although further development of the record may affect the District Court’s

substantive analysis of the Pennhurst bar, I take no position as to what the District Court’s

ultimate conclusion on that question should be. CHIN, Circuit Judge, dissenting, joined by CARNEY and KAHN, Circuit Judges, in full; MERRIAM, Circuit Judge, as to Parts I and II; LEE and PÉREZ, Circuit Judges, as to Part II; and LOHIER and ROBINSON, Circuit Judges, as to Part III:

From 2017 through early 2020, Intervenors Andraya Yearwood and

Terry Miller, transgender females, participated in girls' high school track events

in Connecticut. They won some events and lost some events, but they always

competed in accordance with the applicable rules and policies of the governing

body, the Connecticut Interscholastic Athletic Conference (the "CIAC"). Plaintiffs

-- four non-transgender female athletes who competed against Yearwood and

Miller -- brought this lawsuit seeking, inter alia, injunctive relief to "correct"

certain athletic records by removing all references to Yearwood and Miller, as if

they had never competed. Plaintiffs also sought damages for purported

violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et

seq. ("Title IX").

When Plaintiffs filed suit, their central claim for relief was for an

injunction barring transgender girls from competing in CIAC-sponsored girls'

sporting events. But with the onset of the pandemic and the resulting cancelled

competitions over the following school years, that claim for relief was rendered

moot, leaving only the request for injunctive relief "correcting" the records. The district court dismissed that claim, concluding that Plaintiffs lacked standing to

seek an injunction to rewrite the records. The district court also dismissed

Plaintiffs' claim for damages. The district court did not reach the merits of the

Title IX issue, but held that the damages claim was barred by Pennhurst State Sch.

& Hosp. v. Halderman, 451 U.S. 1 (1981), reasoning that the CIAC and its member

high schools (together, "Defendants") did not have adequate notice that their

policy permitting transgender students to participate in athletics consistent with

their gender identity (the "Policy") violated Title IX -- even assuming that it did.

The majority vacates and remands, holding that Plaintiffs have

pleaded facts sufficient to establish standing for the requested injunctive relief

and that the district court erred by not considering the merits of the damages

claim "before or in tandem with the question of notice." Maj. Op. at 10.

We respectfully dissent. First, with respect to Plaintiffs' claims for

injunctive relief seeking to "correct" the records, we conclude that although

Plaintiffs have alleged injury in fact, they have not sufficiently alleged

redressability, that is, that their injury will be redressed by the relief sought. The

claimed injury -- the denial years ago of an equal opportunity to compete under

Title IX -- would not be redressed by an injunction erasing the times and titles

2 achieved by Yearwood and Miller. Second, with respect to the damages claim,

we see no reversible error in the district court's decision to address the Pennhurst

bar before resolving the more difficult issue of the merits, and we agree that

given the uncertain state of the law and government directives endorsing the

type of approach they adopted, Defendants did not have notice that the Policy

violated Title IX -- again, even assuming that it did.

In 2013, the CIAC first implemented its Policy permitting students

who are transgender to participate in gender-specific athletic competitions

consistent with their gender identity, as established in the student's "current

school records and daily life activities." CIAC By-Laws Article IX, Section B. The

Policy was by no means an outlier. The District of Columbia and fifteen states

have similar policies affording transgender students like Yearwood and Miller

"equal access to sports participation." Amicus Br. for States of New York,

Hawaii, California, Colorado, Delaware, Illinois, Maine, Massachusetts,

Minnesota, Nevada, New Jersey, Oregon, Rhode Island, Vermont, and

Washington, and the District of Columbia at 13, 24-26.

3 Plaintiffs Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley

Nicoletti brought this action in February 2020, when they were high school

seniors (Soule and Mitchell) and sophomores (Smith and Nicoletti), alleging that

the Policy violates Title IX. According to Plaintiffs, as a result of the participation

of transgender girls in girls' athletic events, "girls and women are losing

competitive opportunities, the experience of fair competition, and the

opportunities for victory and the satisfaction, public recognition, and scholarship

opportunities that can come from victory." App'x at 148.

Despite Plaintiffs' sweeping assertions about opportunities lost to

transgender girls, three of the Plaintiffs each alleged only one race, over the course

of their high school athletic careers, in which competing against transgender girls

affected their athletic achievements; one of the Plaintiffs alleged four races.

Specifically, the Second Amended Complaint (the "Complaint") alleges that, but

for the Policy:

• Mitchell would have placed second in the 2018 State Open Championship Women's Outdoor 100-meter final, first in the 2019 State Open Championship Women's Indoor 55-meter final, first in the 2019 Class S State Championship Women's Outdoor 100-meter final, and third in the 2019 State Open Championship Women's Outdoor Track 200-meter final;

• 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; 4 • 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. See id. at 154-58 (Tables 10-15 in the Complaint). 1

The injury Plaintiffs allege is the "denial of equal athletic

opportunity and concomitant loss of publicly recognized titles and placements

during track and field competitions in which they participated against and

finished behind Intervenors" in violation of Title IX. Maj. Op. at 6. Plaintiffs

originally requested the following relief: (1) an injunction prohibiting

Defendants from enforcing the Policy going forward; (2) an injunction requiring

Defendants to "correct any and all records, public or non-public," by removing

Yearwood and Miller and giving "credit and/or titles" to the non-transgender

girls who had lost to them; (3) an injunction requiring Defendants to "correct any

and all records, public or non-public, [by] remov[ing] times achieved by"

1 Smith and Mitchell outperformed Yearwood and Miller on multiple occasions. For example, in the 2019 Combined State Open Championship Women's Outdoor 100- meter final, Mitchell and Smith both outperformed Yearwood and Miller. Compare Appellees' Supp. App'x at 68 (showing first-place finish for Mitchell) with id. at 83 (showing third-place finish for Smith) with id. at 28 (showing fourth-place finish for Yearwood) and id. at 41 (showing false start for Miller). In the 2019 Class S Championship Women's Indoor 55-meter final, Mitchell finished second and Yearwood finished in third. See id. at 30, 70.

5 Yearwood and Miller; and (4) "[a]n award of nominal and compensatory

damages." App'x at 176. Because "plaintiffs must demonstrate standing . . . for

each form of relief that they seek," TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2208 (2021) (citation omitted), we first address Plaintiffs' standing for their claims

for injunctive relief and then turn to Plaintiffs' claims for damages.

We agree that Plaintiffs have alleged that they have suffered a

concrete, particularized, and actual harm -- the denial of equal athletic

opportunity under Title IX -- which is sufficient to establish injury in fact. See

Maj. Op. at 20-23; see also Intervenors' En Banc Br. at 28-29 ("Plaintiffs have

alleged an injury in fact because each Plaintiff has identified at least one specific

instance in which she allegedly raced against -- and finished behind -- a girl who

is transgender."). 2 Even so, as set forth below, Plaintiffs' claims for injunctive

2 When this case was argued before the three-judge panel of this Court, Plaintiffs alleged that the Policy deprived them of a "chance to be champions" and that they "feel erased" because their "records fail to appropriately credit female achievements." Appellants' Panel Br. at 18-19. The panel held that these allegations were insufficient to establish injury in fact because "feel[ing] erased" is not a cognizable Article III injury, and Plaintiffs regularly competed at state track championships where they had the opportunity to compete for state titles and were indeed "champions" on numerous occasions. After the panel issued its opinion, Plaintiffs' theory of injury evolved.

6 relief are either now moot or fail to satisfy the redressability prong of standing,

and therefore dismissal is warranted.

When Plaintiffs first filed this lawsuit in February 2020, they

undoubtedly had standing to seek an injunction prohibiting future enforcement

of the Policy. At that time, the Policy applied to Plaintiffs, who were high school

sophomores and seniors intending to compete in the upcoming Spring 2020 girls'

track and field season against Intervenors. Therefore, future injury as a result of

the Policy was "certainly impending," Clapper v. Amnesty Int'l USA, 568 U.S. 398,

401 (2013), and an injunction preventing Defendants from enforcing the Policy

would redress that alleged injury. But the COVID-19 pandemic intervened,

forcing school closures, and requiring cancellation of the entire spring athletics

season. By the time Defendants filed their joint motion to dismiss in August

2020, Mitchell, Soule, Yearwood, and Miller had all graduated from high school.

Nicoletti and Smith competed against no transgender athletes in their final years

of high school, and they both had graduated before the three-judge panel of this

Court heard oral argument in this case. Hence, as Plaintiffs have conceded and

as the majority does not dispute, Plaintiffs' principal claim for injunctive relief --

7 an injunction forbidding future enforcement of the Policy -- is decidedly moot.

See Maj. Op. at 24 n.3 (citing Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993)).

This leaves, with respect to injunctive relief, only Plaintiffs' requests

for injunctions requiring Defendants to "correct" their official athletic records by

giving "female athletes" the credit and titles they would have received and

"remov[ing]" transgender girls from the records. App'x at 176. According to

Plaintiffs, these injunctions, if granted, would remedy their past denial of equal

athletic opportunities and related "ongoing harm of a degraded resume" by

giving "credit where credit's due." Appellants' En Banc Br. at 29, 38.

We are not convinced, however, that an injunction requiring

Defendants to erase the times and titles earned by Intervenors, and to give non-

transgender athletes higher placements in past races where Intervenors had

finished before them, would redress the alleged injury. The denial of equal

athletic opportunity and related public recognition, it seems to us, could be

redressed only by either ordering do-overs of the races, which Plaintiffs do not

request, or awarding damages, which, as discussed further below, are barred

under Pennhurst in this action.

8 A.

At threshold, a past injury is not redressable by injunctive relief,

unless accompanied by allegations of ongoing harm or a likelihood of future

harm. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 108 (1998) ("If

respondent had alleged a continuing violation or the imminence of a future

violation, the injunctive relief requested would remedy that alleged harm."); City

of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) ("The equitable remedy is

unavailable absent a showing . . . of any real or immediate threat that the plaintiff

will be wronged again. . . . The speculative nature of [plaintiff's] claim of future

injury requires a finding that this prerequisite of equitable relief has not been

fulfilled."). Therefore, "[a] plaintiff seeking injunctive or declaratory relief . . .

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

ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 284 (2d Cir. 2004); see

also Appellants' En Banc Br. at 46.

Next, to satisfy redressability, "it must be likely, as opposed to

merely speculative, that the injury will be redressed by" the relief sought. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks and citation

omitted). This is a real and meaningful requirement. See, e.g., Steel Co., 523 U.S.

9 at 107 ("Relief that does not remedy the injury suffered cannot bootstrap a

plaintiff into federal court; that is the very essence of the redressability

requirement." (emphasis added)); cf. United States v. Juvenile Male, 564 U.S. 932,

937 (2011) (per curiam) (a judgment's "possible, indirect benefit" does not

preserve standing). The Supreme Court has recently emphasized this point:

But redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. . . . Otherwise, redressability would be satisfied whenever a decision might persuade actors who are not before the court -- contrary to Article III's strict prohibition on issuing advisory opinions.

Haaland v. Brackeen, 599 U.S. 255, 294 (2023) (internal quotation marks and

citations omitted, alterations adopted, and emphasis removed).

Finally, as relevant here, a court's favorable decision that merely

bestows "psychic satisfaction" upon a plaintiff fails to satisfy redressability. See

Steel Co., 523 U.S. at 107 (noting that "psychic satisfaction is not an acceptable

Article III remedy"); Kapur v. Fed. Commc'ns Comm'n, 991 F.3d 193, 196 (D.C. Cir.

2021) ("The 'psychic satisfaction' of winning doesn't cut it."); I.L. v. Alabama, 739

F.3d 1273, 1281 (11th Cir. 2014) ("[G]ranting the plaintiffs the relief they request

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

10 courts may not properly provide."); Doyle v. Town of Litchfield, 372 F. Supp. 2d

288, 303 (D. Conn. 2005) ("[S]ome emotional or mental satisfaction . . . is

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

B.

Applying these constitutional principles here, to establish standing

for the requested injunctions to "correct" athletic records, Plaintiffs must

adequately allege either ongoing harm or a likelihood of future harm resulting

from the alleged Title IX violation, and that this ongoing or future injury is likely

to be redressed by the requested relief. Plaintiffs fail to meet this burden.

Plaintiffs' requested injunctions for amending Defendants' records

sweep broadly, seeking the removal of "any and all" times, titles, and records

achieved by transgender girls -- irrespective of whether those records have any

bearing on Plaintiffs' own athletic achievements. See App'x at 176 (emphasis

added). Even the majority recognizes that Plaintiffs go too far in the relief they

request. See Maj. Op. at 32-33. Indeed, an order requiring Defendants to remove

record times and titles achieved by transgender girls that have no impact on

Plaintiffs' own athletic achievements would at most afford Plaintiffs "psychic

satisfaction," and remedy no actual injury of Plaintiffs. This is insufficient to

11 establish standing here. Plaintiffs cannot plausibly allege that they were

personally denied equal athletic opportunities in races where they did not finish

behind a girl who is transgender, and, therefore, there is no ongoing or

likelihood of future harm to Plaintiffs from maintaining the records related to

these races as is. Ordering Defendants to excise the achievements of transgender

girls in races where Plaintiffs finished ahead of, or did not compete against, a

transgender athlete would redress no concrete, particularized, or actual injury

suffered by Plaintiffs. This purported injury is thus insufficient to establish

standing. See Steel Co., 523 U.S. at 107.

We reach the same conclusion for the records related to races where

Plaintiffs themselves placed behind or lost to a girl who is transgender. As

mentioned, Nicoletti, Soule, and Smith each allege one track event in their high

school careers where, "[b]ut for" Intervenors' participation, they would have

placed higher than they did. 3 Mitchell alleges four final championship races

where "[b]ut for" Intervenors' participation, Mitchell would have been the third,

3 Specifically, Nicoletti alleges she would have placed seventh instead of ninth in a preliminary championship race; Soule alleges she would have placed sixth instead of eighth in a preliminary championship race; and Smith alleges she would have placed second instead of third in a final championship race. App'x at 154-59.

12 second, or first place finisher. See App'x at 154-58. Plaintiffs argue that they

continue to suffer ongoing harms from these seven past denials of equal athletic

opportunity, urging specifically that their "downgrade[d]" athletic records

impact their future employment prospects and result in a lack of public

recognition for "their hard-earned athletic accomplishments." Appellants' En

Banc Br. at 36-37 (citing App'x at 172). 4 But Plaintiffs fail to show how

"correcting" the records of these seven high school events that occurred in 2018

and 2019 is likely to redress either of these harms, even partially.

Although Plaintiffs admit that "it is too late for" an injunction to

"correct" the records to have any effect on their opportunities for college

recruitment and scholarships, they argue that the current records "will always

impact" their future employment opportunities. Id. at 37. Setting aside the issue

that the Complaint is devoid of allegations regarding employment, Plaintiffs

4 Plaintiffs also assert that they suffer ongoing "stress, anxiety, intimidation, and emotional and psychological distress" from the alleged Title IX violations in 2018 and 2019. Appellants' En Banc Br. at 28. Emotional distress of this variety is not a cognizable injury in fact. See Santos v. Dist. Council of N.Y.C. & Vicinity of United Brotherhood of Carpenters & Joiners of Am., AFL-CIO, 547 F.2d 197, 200 (2d Cir. 1977) (explaining that "disappointment" in election results is "an emotional loss insufficient to establish standing" (internal quotation marks and citation omitted)); see also Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 619-20 (2007) (Scalia, J., concurring) (explaining that "[p]sychic [i]njury" that consists of an individual's "mental displeasure" is insufficiently "concrete and particularized" to confer standing). 13 have consistently presented nothing other than speculation that "correcting" the

records would have any effect in this arena. It strikes us as pure speculation that

changing Plaintiffs' placements in one high school race (or four races in Mitchell's

case) would affect a prospective employer's decision to hire any one of them in

the future. And the reality is that no prospective employers would be bound by

an injunction issued in this case to overlook the current records, which reflect the

outcomes of the races as they were run. Therefore, even if Mitchell were, for

example, to change her two second-place finishes on her resume to be first-place

finishes, whether this change would improve her employment opportunities

"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." Lujan, 504 U.S. at 562. Under these

circumstances, a court can only speculate as to how prospective employers might

exercise their discretion in hiring. This is insufficient to satisfy redressability. See

id. at 561.

It is conceivable that, if Plaintiffs' requested injunction is granted,

some prospective employer, at some undetermined point in the future, could be

persuaded to interview or hire one of the Plaintiffs because of her belated higher

14 placement in a race she had lost to Yearwood and Miller years ago.

Redressability, however, is not "satisfied whenever a decision might persuade

actors who are not before the court." Haaland, 599 U.S. at 294 (emphasis added).

Moreover, the likelihood that Plaintiffs' higher placements would impact their

employment prospects in this way is minimized by the fact that any hiring

decisions would be made years after Plaintiffs' high school athletic careers

ended. After all, as collegiate runners, Plaintiffs have only added to their already

impressive athletic records. 5 College-level sports are generally considered to be

much more elite and competitive than high school sports, and teams are likely to

be significantly more selective: in fact, only 6.2% of girls who compete in high

school track and field across the country go on to run at the collegiate level. 6

Therefore, it is entirely speculative, if not highly implausible, that Plaintiffs'

placement in any one high school race years ago -- as opposed to the totality of

their more recent and more impressive college records -- would have an impact

on Plaintiffs' future employment opportunities.

5 All four Plaintiffs currently compete on collegiate track-and-field teams. Some were awarded scholarships. By contrast, Yearwood and Miller have not participated in athletics or competed since high school. See En Banc Transcript at 72. 6 See Estimated probability of competing in college athletics, NCAA (Apr. 8, 2020), https://www.ncaa.org/sports/2015/3/2/estimated-probability-of-competing-in-college- athletics.aspx [https://perma.cc/H2SC-YZNH]. 15 We are left, then, with Plaintiffs' allegedly ongoing lack of public

recognition for their athletic achievements as the remaining basis to support

standing for their claims for injunctive relief. According to the majority,

Plaintiffs have standing for an injunction to "correct" public records for the seven

races where Plaintiffs finished behind Intervenors because such relief "could at

least provide [them] with the publicly recognized titles and placements they

would have received if Intervenors had not competed and finished ahead of

Plaintiffs in specific races," Maj. Op. at 7 (emphasis added), "albeit belatedly," id.

at 27. This argument also rests on speculation.

As alleged in the Complaint, the lack of public recognition is not an

ongoing harm that is redressable by an Article III court. What does "belated"

public recognition mean in this case? The majority does not say. Nor does the

majority recognize that Plaintiffs' high school athletic records, as they currently

exist, do give them public recognition for their achievements in races that were

run in conformity with the rules in effect at the time. For example, the current

records provide that Mitchell was the third-place finisher in the 2019 State Open

Championship Women's Indoor 55-meter final and the second-place finisher in

the 2019 Class S State Championship Women's Outdoor 100-meter final. App'x

16 at 155, 158. Plaintiffs do not allege that these records fail to reflect that they won

according to the rules in place at the time. Rather, Plaintiffs allege that they

would have won or placed higher if the rules had been different, and that if an

injunction were now to be issued, retroactively changing the rules of the game,

they would somehow receive measurably greater public recognition and their

reputations would be further enhanced. 7 These allegations, too, are purely

speculative. An injunction "correcting" the records to reflect an alternate

universe according to how Plaintiffs say they would have competed in seven

races had the rules been different would give Plaintiffs nothing more than the

satisfaction of a judicial decision vindicating their position that the Policy

violates Title IX. But, as counsel for Plaintiffs conceded, see En Banc Transcript at

7, achieving "psychic satisfaction is not an acceptable Article III remedy," Steel

Co., 523 U.S. at 107. While we do not take the position that psychic relief can

never be sufficient to confer standing, here, where the injunction seeks merely to

7 Although in particular cases both types of relief may be warranted, damages generally provide adequate and appropriate redress for claims of past reputational injury. See, e.g., TransUnion, 141 S. Ct. at 2210-13 (holding that plaintiffs who were erroneously identified by credit reporting agency to potential creditors as being on a government "terrorist list" suffered concrete injury of "reputational harm" and have standing to seek retrospective damages); Bohnak v. Marsh & McLennan Companies, Inc., 79 F.4th 276, 289 (2d Cir. 2023) (holding that risk of harm caused by public disclosure of private information is redressable with retrospective damages). 17 remedy a past injury by giving "credit where credit's due" and the claim is

principally for Plaintiffs' moral or emotional satisfaction, it is not sufficient. Id.;

Kapur, 991 F.3d at 196; I.L., 739 F.3d at 1281; see also Lyons, 461 U.S. at 107 n.8

("The emotional consequences of a prior act simply are not a sufficient basis for

an injunction absent a real and immediate threat of future injury by the

defendant. Of course, emotional upset is a relevant consideration in a damages

action.").

Had Plaintiffs adequately alleged a non-speculative ongoing or

future harm resulting from the past denial of equal athletic opportunity, our

standing analysis would be different. The circumstances here are distinguishable

from, for example, those of a law student who, as a result of sex or racial

discrimination, was downgraded from receiving a "magna cum laude"

designation to "cum laude" only. See En Banc Transcript at 6-7. There is no

question that an injunction to reallocate Latin honors that were illegally

bestowed upon a law school graduate would provide more than "psychic

satisfaction" to the injured individual. Such an injunction is likely to redress a

non-speculative and ongoing or future harm by directly improving employment

prospects or earning capacities in a field of study. The link, however, between

18 improved employment opportunities after college graduation and finishing first

instead of third in a high school track race held years earlier is much more

attenuated -- if it exists at all.

The majority acknowledges that "Plaintiffs do not have standing to

seek remedies for generalized grievances about the [] Policy," Maj. Op. at 31, but

the record leaves no doubt that Plaintiffs are indeed waging a generalized

campaign in federal court against transgender athletes. 8 Indeed, the majority

8 That Plaintiffs brought this case to pursue generalized grievances is evident from the language they use throughout the Complaint. Plaintiffs refer to themselves as "girls" and "female athletes," App'x at 164, but refer to Intervenors as "student[s] born male," id. at 133; "biological males," id. at 164; and "athletes born male and with male bodies," id. at 176. Notably, in the district court Plaintiffs moved to disqualify the district judge after he ordered them to stop referring to Intervenors as "males." In his order denying the motion, the district judge observed that Plaintiffs' use of "males" in this respect was "needlessly provocative" and not necessary to advance Plaintiffs' position. In our dissent, we refer to Intervenors as "transgender females" and "transgender girls." We do so to afford them the respect and dignity they are due as litigants in our Court. Because a transgender person's gender identity is what some "would think of as opposite to their assigned sex," Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 594 (4th Cir. 2020), as amended (Aug. 28, 2020), calling attention to a transgender person's biological sex by referring to them as a "biological male" is harmful and invalidating. See Wylie C. Hembree et al., Endocrine Treatment of Gender- Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102(11) J. Clinical Endocrinology & Metabolism 3869, 3875 tbl.1 (2017) (observing, "[a]s [the physical aspects of maleness and femaleness] may not be in line with each other . . . the terms biological sex and biological male or female are imprecise and should be avoided"). Research indicates that misgendering -- referring to the gender of a person incorrectly -- can cause or exacerbate feelings of stigmatization, stress, and depression. See Sabra L. Katz-Wise, Misgendering: What it is and why it matters, Harvard Health

19 implicitly acknowledges as much by, inter alia, purporting to limit Plaintiffs'

standing to seek an injunction to "correct" public -- as opposed to private --

athletic records only. "Correcting" private records, according to the majority,

would afford Plaintiffs only "psychic satisfaction." Id. at 32-33 (citing Steel Co.,

523 U.S. at 107). Implicit in the majority's distinction between private and public

records is the recognition that an injunction to "correct" the records cannot

remedy Plaintiffs' past denial of equal athletic opportunities and is effective only

for providing "some" additional public recognition to Plaintiffs. Because private

athletic records do not give public recognition, the majority is forced to draw the

line there. If this case were genuinely about redressing Plaintiffs' alleged past

denial of equal athletic opportunities, there would be no distinction between

public and private records -- there would be only damages. Instead, the majority

accepts Plaintiffs' invitation to be not an arbiter of justiciable disputes but a

dispenser of public acclaim.

Publishing, Harvard Medical School (July 23, 2021), https://www.health.harvard.edu/ blog/misgendering-what-it-is-and-why-it-matters-202107232553 [https://perma.cc/F8Q3- AP39]; see also Kevin A. McLemore, A Minority Stress Perspective on Transgender Individuals' Experiences with Misgendering, 3 Stigma and Health 1, 53-64 (2018). For transgender people, the experience of being misgendered -- whether intentionally or negligently -- harms their "deeply felt, inherent sense" of gender, a core part of what makes each of us human. Grimm, 972 F.3d at 594. 20 There is no case, to our knowledge, where a court has held that a

plaintiff had standing for a claim for injunctive relief and the only redress a

court's favorable decision could bestow came in the form of public recognition.

But cf. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 134-35, 140 (1951)

(holding that plaintiff had standing for an injunction striking its name from a

public list of organizations designated by the Attorney General as Communist

because plaintiff alleged that the designation was erroneous and that it resulted

in a laundry list of ongoing harms -- including "a multiplicity of administrative

proceedings . . . to rescind licenses, franchises, or tax exemptions," and the

resignation or withdrawal of its members). Moreover, unlike the cases from our

sister circuits holding that a plaintiff continued to have standing to seek relief

from an athletic association's attempts to vacate or expunge their athletic records,

Plaintiffs here do not allege any such future threat to their records. Cf. e.g.,

Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir.

1995); Crane by Crane v. Indiana High Sch. Athletic Ass'n, 975 F.2d 1315, 1318 (7th

Cir. 1992); Wiley v. Nat'l Collegiate Athletic Ass'n, 612 F.2d 473, 476 (10th Cir.

1979). Plaintiffs' reliance on these cases is ill-placed; rather, it is Intervenors who,

due to this lawsuit, "have an interest in preventing" the "erasure of" their

21 individual records. 9 Sandison, 64 F.3d at 1030. Indeed, in the absence of any

plausible, non-speculative allegations of ongoing or future harm, Plaintiffs'

remaining claims for injunctive relief are fundamentally retrospective -- seeking

to remedy the past denial of equal athletic opportunities -- and therefore, if they

have a meritorious claim, the proper remedy is damages. See Lyons, 461 U.S. at

111.

Even assuming that the redressability requirement were met, other

considerations warrant our caution in ultimately awarding such injunctive relief,

particularly when there is no dispute that Plaintiffs' claims for damages -- if

sustained -- would redress the alleged harm. Cf. Metro. Opera Ass'n, Inc. v. Loc.

100, Hotel Emps. & Rest. Emps. Int'l Union, 239 F.3d 172, 177 (2d Cir. 2001) (stating

that, given First Amendment considerations, injunctive relief will not usually be

granted to enjoin a libel or slander and that, ordinarily, the only remedy for

9 In her concurrence, our colleague Judge Nathan writes, "it is not surprising that [Intervenors'] own lawyers suggested at oral argument" that Plaintiffs have standing. Nathan, J., Concurrence at 4 (citing Oral Arg. Tr. at 63-64, 66, 68-69, 71-72). We do not understand counsel to have made any such suggestion. For instance, at oral argument, Intervenors' counsel simply noted that the availability of a remedy presented a "redressability question," but this statement does not "suggest[]" that Plaintiffs had standing with respect to the remaining claim for an injunction rewriting the records. In the same exchange, counsel reiterated Intervenors' position that this case should "be resolved on a 12(b)(6) motion for failure to state a claim." 22 defamation is an action for damages). "Correcting" the records as Plaintiffs

request would require stripping Yearwood and Miller of the athletic

achievements earned by them when, at all times relevant, they were eligible

competitors and competed in full compliance with all applicable and existing

CIAC rules.

Plaintiffs assert that "the reallocation of records and medals" is

"commonplace," Appellants' En Banc Br. at 51, and point to the practice of

various sports governing bodies withdrawing awards previously bestowed on

certain athletes who were determined to have been ineligible to compete under

the (unamended) governing rules. In none of these examples, however, did the

governing bodies grant the precise relief Plaintiffs seek here. Plaintiffs have not,

and cannot, point to a sports governing body that retroactively stripped an

athlete of accomplishments where the athlete did not cheat or take an illegal

substance, but instead complied with all the then-existing rules. Even assuming

that Plaintiffs are right on the merits and the Policy violates Title IX, it is

unprecedented to retroactively change the ground rules of individual local

competitions, such that certain competitors will be deemed ineligible only after

the fact, and then, to take it even further, to strip those competitors of their duly

23 earned achievements based on a late-developing interpretation of a federal

statute. It is not the business of the federal courts to grant such relief.

To be sure, whether a plaintiff is ultimately entitled to the relief she

seeks goes to the merits of her claims and does not control the threshold

jurisdictional question of whether she can maintain her claims in an Article III

court. See E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014); see also

Chafin v. Chafin, 568 U.S. 165, 174 (2013). But we do not assert that an injunction

"correcting" the records is legally unavailable to Plaintiffs -- we simply

acknowledge that granting the requested relief would require taking something

away from third parties, who, as Plaintiffs admit, "haven't done anything

wrong." En Banc Transcript at 8. Moreover, the redressability requirement of

standing requires consideration of whether the relief sought is "an acceptable

Article III remedy," Steel Co., 523 U.S. at 107, and thus "the linkage of justiciability

doctrine to concerns about necessary and acceptable remedies is evident on the

face of the 'redressability' prong of the standing test." Richard H. Fallon, Jr., The

Linkage Between Justiciability and Remedies -- and Their Connections to Substantive

Rights, 92 Va. L. Rev. 633, 670 (2006). Although "[r]edressability does not permit

us to wade so deeply into the merits," Cacchillo v. Insmed, Inc., 638 F.3d 401, 405

24 (2d Cir. 2011), "there should be no categorial resistance to courts allowing

judgments about necessary and unacceptable remedies to influence their framing

of justiciability rules," Fallon, 92 Va. L. Rev. at 692. Here, the balance of the

equities does not raise an issue of redressability on its own, but it triggers a need

for special caution in assessing redressability, and reaffirms that the preferable

remedy in a case such as this is the more traditional one of monetary relief,

notwithstanding a court's de facto power to enter an order changing the records

if the circumstances warranted.

Accordingly, in the circumstances presented here, we are not

persuaded that striking Yearwood's and Miller's records would meaningfully

redress Plaintiffs' alleged past injury of a denial of equal athletic opportunities

and related public recognition. 10

10 In support of its standing analysis, the majority contends that "if the facts were reversed and an athletic conference decided to categorize transgender girl athletes as boys," the transgender girls would have standing to bring a Title IX claim. Maj. Op. at 7. The majority also asserts that our standing analysis "would leave the transgender girl athletes [in a reversed hypothetical] without standing to seek alteration of existing athletic records consistent with their athletic achievement." Id. at 29 n.6. We are unclear as to what the majority means by a reversed hypothetical. If transgender girls were barred from racing in girls' races, they surely would have standing to sue for damages and to seek injunctive relief with respect to the policy (as long as their claims were not moot). But there would be no basis for an injunction to alter existing records if they had not been permitted to run in the first place. If the majority has in mind a situation where transgender girls were permitted to run in races and the athletic conference then

25 III.

As discussed, an award of monetary damages, even in nominal

amounts, would redress Plaintiffs' alleged injury of a denial of equal athletic

opportunities. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021) (where

plaintiff's legal rights were violated and he could not or would not quantify his

injury in economic terms, for "purpose[s] of Article III standing, nominal

damages provide the necessary redress"). We would, however, affirm the

district court's holding that monetary relief is unavailable in this case by virtue of

Pennhurst.

Congress enacted Title IX pursuant to its authority under the

Spending Clause. See Maj. Op. at 37. Pennhurst imposes a limit on this power,

changed course and struck their results from the records, they would also likely lack standing to sue to reinstate their results years later unless they could allege a non- speculative ongoing or future injury resulting from the athletic conference's actions. The nature of the injury in the latter scenario (unlikely as it may be) would be substantially different from the injury at issue in the present case, for the transgender girls would be seeking not just to alter records to move up in the race results, but to rectify the complete elimination of their athletic achievements from the records. If, finally, the majority contemplates a scenario where transgender girls are permitted to race but are grouped with non-transgender boys in the results, that too would present an injury of a different kind than Plaintiffs' here. The majority's "shoe on the other foot" hypothetical, Maj. Op. at 28, overlooks the fact that in that case, transgender girls would have standing based on an ongoing injury caused by being misgendered in public records of past races. In contrast, Plaintiffs here were never prevented from competing and do not claim that the records are inaccurate as to their gender identity. 26 "requir[ing] Congress to speak unambiguously in imposing conditions" on States

when they accept "federal grant money." State of New York v. U.S. Dep't of Just.,

964 F.3d 150, 153 (2d Cir. 2020) (citation and quotation marks omitted). When

Congress fails to "speak unambiguously," liability cannot be imposed on a

federal funding recipient for violating the Spending Clause statute. Id.

The majority faults the district court for dismissing Plaintiffs' claims

for monetary relief pursuant to the Pennhurst bar before addressing the merits of

the Title IX claim. We address first the issue of "Pennhurst sequencing" -- that is,

whether courts must consider the merits before reaching the Pennhurst bar.

Finding that neither the Supreme Court nor this Court has recognized any such

requirement, we then turn to the district court's application of the Pennhurst bar

in this case.

A.

Contrary to the majority's view, the district court did not conclude

"that it was required to resolve," Maj. Op. at 9, or "that it must resolve the question

of [Pennhurst] notice before reaching the merits of Plaintiffs' Title IX claims," id. at

37 (emphasis added). The district court made no such ruling. The majority's

erroneous conclusion rests entirely on a footnote in the district court's opinion:

27 Plaintiffs argue that the question of notice should be deferred until a later stage of the case. However, if the plaintiffs' claims for money damages are barred due to lack of adequate notice, the action is subject to dismissal in its entirety because the only remaining form of relief sought in this case – attorney's fees and expenses -- is 'insufficient, standing alone, to sustain jurisdiction.'

Soule by Stanescu v. Conn. Ass'n of Schs., Inc., No. 3:20-CV-00201 (RNC), 2021 WL

1617206, at *8 n.13 (D. Conn. Apr. 25, 2021) (quoting Cook, 992 F.2d at 19). From

this footnote, the majority surmises that it is "apparent" that the district court

thought that it "lacked discretion to reach the merits of Plaintiffs' claims without

first determining if monetary damages would be available under Pennhurst."

Maj. Op. at 39.

It is true that the district court, in this footnote, adverted to the

possible need for dismissal of the action "in its entirety" and mentioned

jurisdiction. It did so cursorily, however, without any analysis, and only in

response to Plaintiffs' request that it "should" defer consideration of the Pennhurst

issue. 2021 WL 1617206, at *8 n.13 (emphasis added). But nowhere in its lengthy

discussion of Pennhurst does the district court note, or even suggest, that it

believed it was required to decide the notice question first or that it lacked the

discretion to consider Plaintiffs' claims for monetary relief on the merits. Rather,

notwithstanding the footnote, we think the better reading of the district court's 28 opinion is that it exercised its discretion by choosing to determine the Pennhurst

bar first. Its discussion of the sequencing issue, in tone and substance, took the

posture of an aside or afterthought. Moreover, in briefing the motion to dismiss

in the district court, no party suggested that the district court was required to

decide the Pennhurst issue first. Indeed, in moving to dismiss, Defendants

addressed the merits first and the Pennhurst bar second. The structure and

language of the briefing below made clear that, in the parties' view, the district

court was free to address the merits first if it was so inclined. 11 Instead, it

exercised its discretion to address the Pennhurst issue first.

In this context, we cannot conclude that the district court erred in

doing so. After dismissing Plaintiffs' claims for injunctive relief for mootness

and lack of standing, see Soule, 2021 WL 1617206, at *4-8, only Plaintiffs' claims

for damages and attorneys' fees and costs remained. Therefore, the district court

correctly concluded that, if Pennhurst provided a defense against Plaintiffs'

11 Defendants addressed the damages claim in Point III of their memorandum of law, which contained four sub-points. The first three subpoints argued that Plaintiffs had failed to allege a plausible claim for a violation of Title IX, and only in the fourth sub-point did they raise the Pennhurst bar. Moreover, sub-point D begins by arguing that "[a]t a minimum," the damages claim was barred by Pennhurst. And in their memorandum in opposition to Defendants' motion to dismiss, Plaintiffs argued, with respect to the Pennhurst issue, that "debates about proper relief are for a later day, not a basis for dismissal." Dist. Ct. Doc. 154 at 53. 29 claims for damages, then Plaintiffs could not win any of the relief they requested,

and the request for attorneys' fees and expenses would not provide a basis for

the court to adjudicate the merits of Plaintiffs' Title IX claim. See id. at *8 n.13. 12

The district court surely did not abuse its discretion in refraining from deciding

more than was necessary to resolve Defendants' motion to dismiss. See Morse v.

Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring in part and dissenting in

part) ("[I]f it is not necessary to decide more, it is necessary not to decide more."

(citation and quotation marks omitted)).

To be sure, when "questions are 'indispensably necessary' to

resolving the case at hand, 'the court must meet and decide them.'" Citizens

United v. Fed. Election Comm'n, 558 U.S. 310, 375 (2010) (Roberts, C.J., concurring)

(quoting Ex parte Randolph, 20 F. Cas. 242, 254 (Cir. Ct. Va. 1833) (Marshall, C.J.)).

Even the majority recognizes that the district court did not abdicate its duty to

resolve a question that was indispensably necessary to this case; the majority

12 The district court was merely observing that, once the other claims were dismissed, Plaintiffs' request for attorneys' fees and expenses could not provide a basis for it to reach the merits because "such fees are available only to a party that 'prevails' by winning the relief it seeks." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 (1990); see also Uzuegbunam, 141 S. Ct. at 801 ("[T]hose awards are merely a 'byproduct' of a suit that already succeeded[.]" (citation omitted)).

30 asserts only that "there are strong reasons for addressing the merits first." Maj.

Op. at 41. None of the majority's "strong reasons," however, lead to the

determination that, in this case, the district court was required to adjudicate the

merits of Plaintiffs' claims before addressing Pennhurst. In fact, Intervenors

conceded at oral argument that there is nothing prohibiting a court from dealing

with the Pennhurst issue before the merits issue -- only that doing so in this

instance is "a little bit awkward." En Banc Transcript at 58. Appellate courts do

not vacate the reasoned judgments of experienced district judges on the basis of

"awkwardness" -- there must be an identified error in the district court's holding

or an abuse of its discretion to support vacatur. Apart from its overreading of a

remark in footnote 13, the majority points to neither.

A review of Pennhurst's progeny confirms that no precedential

authority requires that a court in our Circuit reach the merits of a Title IX claim in

tandem with, or prior to, the question of notice. The Supreme Court has, at

various times, addressed (1) the merits before notice, (2) the merits together with

notice, and (3) notice without reaching the merits at all. For example, in Jackson

v. Birmingham Board of Education, 544 U.S. 167, 178-83 (2005), the Court addressed

first whether retaliation falls within the Title IX's prohibition of intentional

31 discrimination on the basis of sex, and then considered whether the recipient had

notice that it could be liable for damages with respect to claims of retaliation.

But Jackson is an outlier. In two earlier cases -- both of which held that Pennhurst

does not bar damages where a funding recipient was deliberately indifferent to

known acts of sexual harassment -- the Supreme Court integrated the Pennhurst

notice and Title IX merits inquiries. See Franklin v. Gwinnett Cnty. Pub. Schs., 503

U.S. 60, 74-75 (1992) (stating, in one paragraph, that Pennhurst is inapplicable and

that "[u]nquestionably, Title IX placed on the [school district] the duty not to

discriminate on the basis of sex" by permitting teacher-on-student harassment in

its schools); see also Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526

U.S. 629, 643-44 (1999) (concluding that "deliberate indifference to known acts of

harassment . . . amounts to an intentional violation of Title IX, capable of

supporting a private damages action, [even] when the harasser is a student"

because the "regulatory scheme surrounding Title IX" and common law have

"long provided funding recipients with notice that they may be liable for their

failure to respond to the discriminatory acts of certain nonagents"). Finally, in

certain cases involving other Spending Clause legislation akin to Title IX, the

Supreme Court has addressed only the Pennhurst notice issue, making no

32 determination as to the merits of the plaintiff's claims. See, e.g., Cummings v.

Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 222-23, reh'g denied, 142 S. Ct. 2853

(2022) (concluding that recipients lacked the requisite notice that they could face

liability for emotional distress damages for violating Spending Clause statutes);

see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 300 (2006)

(holding that the fee-shifting provision of the Individuals with Disabilities

Education Act, a Spending Clause statute, fails to furnish "clear notice" that a

funding recipient could face liability to a prevailing parent for the cost of services

rendered by experts).

Moreover, some of our sister circuits have considered first whether

the Pennhurst bar applies to a claim brought under Title IX before turning to the

merits of the claim. See, e.g., Hall v. Millersville Univ., 22 F.4th 397, 403 (3d Cir.

2022) ("The first issue we must address is whether, as a matter of law, [the

funding recipient] could not be held liable under Title IX because it lacked notice

that its deliberate indifference to sexual harassment perpetrated by a non-student

guest could result in Title IX liability."); cf. Parker v. Franklin Cnty. Cmty. Sch.

Corp., 667 F.3d 910, 921-22 (7th Cir. 2012) (requesting supplemental briefing on

the Pennhurst notice question and addressing the merits of plaintiffs' claim that

33 sport-specific scheduling disparities violated Title IX only after holding the

Pennhurst defense to be waived). Others, like the district court here, have

applied Pennhurst to bar claims for damages without ever reaching the merits.

See, e.g., Sch. Dist. of City of Pontiac v. Sec'y of U.S. Dep't of Educ., 584 F.3d 253, 277

(6th Cir. 2009) (en banc) (concluding that the No Child Left Behind Act "fails the

Spending Clause inquiry because it does not provide clear notice to States that

they must incur the costs of compliance" without resolving an issue of statutory

interpretation central to the merits of plaintiffs' claims); Rendelman v. Rouse, 569

F.3d 182, 188-89 (4th Cir. 2009) ("When Congress desires to impose a condition

under the spending clause, it is Congress' burden to affirmatively impose the

condition in clear and unmistakable statutory terms. We conclude therefore that

. . . Congress did not signal with sufficient clarity an intent to subject such a

person to an individual capacity damages claim under [the statute]." (internal

citations and marks omitted) (alterations adopted)).

Indeed, it makes sense that a district court would have discretion to

choose whether to address the merits of a claim first, or to determine whether

Pennhurst would bar the claim irrespective of its merit. As the majority puts it,

Pennhurst "is a mere defense to [damages] liability," Maj. Op. at 43 (citations and

34 quotation marks omitted), and it should be treated as such. Generally, a district

court may choose to decide a defense that legally defeats a claim for relief, raised

in a pre-answer motion to dismiss, "if the defense appears on the face of the

complaint." Conn. Gen. Life Ins. Co. v. BioHealth Lab'ys, Inc., 988 F.3d 127, 131–32

(2d Cir. 2021) (statute of limitations); see also McKenna v. Wright, 386 F.3d 432, 436

(2d Cir. 2004) (qualified immunity); Day v. Moscow, 955 F.2d 807, 811 (2d Cir.

1992) (res judicata). Had the district court dismissed Plaintiffs' claims for

damages pursuant to another defense appropriately asserted in a Rule 12(b)(6)

motion -- such as for failure to comply with a statute of limitations or res

judicata -- this Court would not vacate and remand on the ground that the

district court should have adjudicated the merits of the claim before determining

whether the asserted defense was applicable. Indeed, it behooves any court to

avoid such inefficiency.

So too here. It was more efficient for the district court to address the

Pennhurst issue first. Because the law was unsettled as to whether the Policy

violates Title IX, the issue of notice -- that is, the lack thereof -- provided a

simpler, yet sufficient way for deciding the damages claim in this case, obviating

the need to definitively resolve the more complicated merits question.

35 The majority raises the concern that "[i]f courts skip ahead to ask

whether damages will be available under Pennhurst, then there may be fewer

opportunities for Title IX law to develop on the merits in suits seeking only

monetary relief," noting that "plaintiffs do not always -- and sometimes cannot --

bring and sustain injunctive claims." Maj. Op. at 43 & n.8. Apart from citing to

no authority to support these assertions, the majority ignores the fact that claims

for injunctive relief were asserted in nearly all the cases cited in the majority's

section on Pennhurst. See Maj. Op. at 36-43; see also Cummings, 596 U.S. at 217 ("In

her complaint, [plaintiff] sought declaratory relief, an injunction, and damages.");

Amended Complaint, at 3, Jackson v. Birmingham Bd. of Educ., No. 2:01-CV-01866

(KOB), 2002 WL 32668124 (N.D. Ala. Feb. 25, 2002) (seeking damages and "a

permanent injunction enjoining the defendant . . . from continuing to violate Title

IX"); Davis, 526 U.S. at 632 (noting that plaintiff's complaint included a "claim for

monetary and injunctive relief under Title IX"); Pennhurst, 451 U.S. at 6 ("In

addition to seeking injunctive and monetary relief, the complaint urged . . . .");

Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 962 (9th Cir. 2010) ("The

plaintiffs sought damages and injunctive relief under Title IX . . . ."); cf. Bennett v.

Ky. Dep’t of Educ., 470 U.S. 656, 658-59 (1985) (seeking judicial review and

36 reversal of a final agency decision). 13 Moreover, Title IX law will continue to

develop, irrespective of when courts choose to invoke Pennhurst, so long as

plaintiffs continue to assert claims for injunctive relief. 14

In sum, the district court did not err or abuse its discretion here; it

did not hold that it was required to resolve the question of notice before reaching

the merits. Nor was the court prohibited from dismissing Plaintiffs' claims for

monetary damages based on Pennhurst without addressing the merits. Rather,

the district court logically elected, in its discretion, to address whether the CIAC

lacked the requisite notice, rather than first addressing the merits of the Title IX

claim. For these reasons, the majority's "basis" for vacating the district court's

Pennhurst holding is no basis at all. Maj. Op. at 42 n.7. 15

13 Franklin and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), are the only cases cited by the majority without claims for injunctive relief. Both dealt with allegations of sexual harassment, but only Franklin held that the funding recipient's conduct violated Title IX. See Franklin, 503 U.S. at 74-76; Gebser, 524 U.S. at 292. 14 It is undisputed that the district court in this case would have had to resolve the merits question if Plaintiffs' claim for an injunction to enjoin the Policy had not become moot. The anomaly of the pandemic and its impact on Plaintiffs' standing for injunctive relief allowed the district court to dismiss Plaintiffs' Title IX claim without reaching the merits. Accordingly, nothing about the approach adopted by the district court elevates Pennhurst from a defense to damages liability to a kind of qualified immunity. 15 The majority also suggests that both Plaintiffs and Intervenors "advocated" for remand. Maj. Op. at 17. Not so. In their en banc brief, Intervenors argued for affirmance, Intervenors' En Banc Br. at 4, and at oral argument, when asked whether the en banc Court should decide the merits or remand for the district court to do so, counsel

37 B.

Next, we consider whether the district court appropriately

dismissed Plaintiffs' claims for monetary damages because Defendants lacked

notice that the Policy violates Title IX. In light of the lack clarity in the law, we

find that the requisite notice was lacking, and, therefore, we would affirm the

district court's dismissal on the ground that Pennhurst bars Plaintiffs' damages

claims.

A funding recipient's liability for violating Title IX depends, in part,

on whether its violation was "unintentional" or "intentional." Gebser, 524 U.S. at

287. Liability also depends on notice -- because Title IX is legislation enacted

pursuant to Congress's authority under the Spending Clause, "private damages

actions are available only where recipients of federal funding had adequate

notice that they could be liable for the conduct at issue." Davis, 526 U.S. at 640;

accord Gebser, 524 U.S. at 287 ("Our central concern . . . is with ensuring that 'the

receiving entity of federal funds [has] notice that it will be liable for a monetary

award.'") (citation omitted). As the Supreme Court explained,

legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States

for Intervenors merely stated "either course of action would be perfectly appropriate." Oral Arg. Tr. at 60-61. 38 agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.

Pennhurst, 451 U.S. at 17 (citations omitted) (emphasis added). Accordingly, if

the funding recipient lacks notice that it could be held liable for certain conduct,

or if the funding recipient unintentionally violates Title IX, Pennhurst would bar

a plaintiff's private damages action under Title IX. See also Franklin, 503 U.S. at 74

("The point of not permitting monetary damages for an unintentional violation

[of Title IX] is that the receiving entity of federal funds lacks notice that it will be

liable for a monetary award.").

Pennhurst's notice requirement, however, "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, 526 U.S. at 642. This is

because the plain terms of Title IX place a duty on a funding recipient to not

discriminate intentionally on the basis of sex. See 20 U.S.C. § 1681(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

39 program or activity receiving Federal financial assistance[.]"). "Congress surely

did not intend for federal moneys to be expended to support the intentional

actions it sought by statute to proscribe." Franklin, 503 U.S. at 75.

Plaintiffs invite this Court to extend Davis and fashion a rule holding

that Pennhurst's notice requirement is inapplicable to Title IX claims that rest on a

funding recipient's "[o]fficial policies," which are "always known [and]

intended." Appellants' En Banc Br. at 55; see also Menashi, J., Concurrence at 6-7.

But to adopt Plaintiffs' argument would run afoul of the very essence of the

Pennhurst doctrine, and would conflate the requirement that a recipient's actions

be intentional with the requirement that a recipient have notice of its legal

obligations. Indeed, contrary to Plaintiffs' argument, a Title IX recipient's

liability cannot turn solely on the "intentionality" of its challenged action. Rather,

it is intentional action in clear violation of Title IX -- that is, intentional

discrimination -- that removes the Pennhurst bar. See Franklin, 503 U.S. at 74-75

("This notice problem does not arise in a case such as this, in which intentional

discrimination is alleged.") (emphasis added). A policy made in good faith and

without clear notice that it violates Title IX is unintentional discrimination and

cannot be a basis for damages retrospectively, even if it is ultimately deemed to

40 be unlawful. Gebser, 524 U.S. at 287 ("[R]elief in an action . . . alleging

unintentional discrimination should be prospective only, because where

discrimination is unintentional, it is surely not obvious that the grantee was

aware that it was administering the program in violation of the condition.")

(internal quotation marks and alteration omitted).

Jackson is most persuasive on this point. When deciding whether a

school district could be held liable for damages under Title IX for retaliating

against a teacher who complained about sex discrimination, the Jackson Court

considered both whether the school district's conduct was intentional, and

whether Title IX had supplied sufficient notice to the school district that

retaliation violates the statute's clear terms. 544 U.S. at 183. The Court

proceeded to this second inquiry even after noting that retaliation "is always --

by definition -- intentional." Id. If Plaintiffs' view were correct that liability sinks

or swims on the sole basis of intentionality, the Court's analysis would have

ended there. But it did not. The Court continued to the notice inquiry,

considering the statute's text, the 30-year long history of Title IX regulations

"clearly prohibit[ing] retaliation," and the courts of appeals decisions that had

previously interpreted Title IX to cover retaliation. Id. at 183-84. Only then did

41 the Court determine that, "given this context," the funding recipient "could not

have realistically supposed that . . . it remained free to retaliate against those who

reported sex discrimination." Id.; see also Davis, 526 U.S. at 643-44 (noting first

that deliberate indifference to known acts of harassment is intentional conduct

and then holding that "the regulatory scheme surrounding Title IX" and the

common law have put schools on notice that they may be held responsible for

the discriminatory acts of third parties, like student-on-student sex harassment).

Therefore, as compared to Plaintiffs' argument that mere promulgation and

enforcement of an "official policy" is sufficient, on its own, to hold a funding

recipient liable for damages, the more persuasive reading of Jackson (and Davis) is

that damages are barred unless a funding recipient knew that its policy violated

Title IX's clear proscription against sex discrimination. 16

16 In his concurrence, our colleague Judge Menashi writes that "three circuits have held, in the Title IX context, that the official acts -- including policies -- of a recipient of federal funds qualify as intentional conduct and are not subject to a further Pennhurst notice requirement." Menashi, J., Concurrence at 10. The three cases, however, are all factually distinguishable from this case. See Mansourian, 602 F.3d at 962 (university eliminated all women from wrestling program and, after students filed complaint with Office of Civil Rights, university agreed to permit women to participate but only on terms that made the women unable to do so); Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1173 (10th Cir. 2007) (two women who were sexually assaulted by university football players and high school students on a recruitment visit were permitted to proceed with Title IX claim where there was evidence that (1) the university had an "official policy" of showing high school football recruits a "good time" on their visits to

42 Looking to the facts of this case, the notice inquiry necessitates the

conclusion that damages are barred. The plain text of Title IX's

nondiscrimination mandate does not "unambiguously" prohibit trans-inclusive

policies like those adopted by the CIAC; indeed, a substantial body of law

suggests that Title IX allows or even requires such policies. Pennhurst, 451 U.S. at

17; see also Parents for Priv. v. Barr, 949 F.3d 1210, 1227 (9th Cir. 2020) ("Nowhere

does the statute explicitly state, or even suggest, that schools may not allow

transgender students to use the facilities that are most consistent with their

gender identity."); cf. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020)

(applying Title VII's prohibition of discrimination "on the basis of sex" to

discrimination based on one's transgender status). Plaintiffs do not dispute that

federal guidance on this issue has oscillated between presidential

campus, (2) the university failed to provide adequate supervision, and (3) "the likelihood of such misconduct was so obvious that [the university]'s failure was the result of deliberate indifference"); Pederson v. La. State Univ., 213 F.3d 858, 864 (5th Cir. 2000) (female students alleged that LSU violated Title IX by denying them "equal opportunity to participate in intercollegiate athletics, equal opportunity to compete for and to receive athletic scholarships, and equal access to the benefits and services that LSU provides to its varsity intercollegiate athletes, and by discriminating against women in the provision of athletic scholarships and in the compensation [of] paid coaches"). While these cases did involve official acts and policies, these were acts and policies that involved intentional (or deliberately indifferent) discrimination in clear violation of Title IX. 43 administrations and that the Department of Education's Office of Civil Rights

(the "OCR") never clearly provided that allowing transgender students to

participate on athletic teams consistent with their gender identity violates Title

IX. Indeed, counsel for Plaintiffs have acknowledged that conflicting federal

guidance created "confusion" as to what Title IX prohibits when it comes to

transgender athletes, En Banc Transcript at 26, and they have conceded that there

is no case under Title IX, or any other Spending Clause statute, that has

permitted monetary liability to be imposed in the circumstances present here --

that is, where the conduct at issue was approved by the agency responsible for

providing guidance to funding recipients, id. at 27. 17 Nor do Plaintiffs cite a

single court decision that has interpreted Title IX to prohibit trans-inclusive

athletic policies like that of the CIAC. Indeed, there are cases to the contrary,

holding that trans-exclusionary policies violate Title IX, or that trans-inclusive

17 See Letter from Catherine E. Lhamon, Assistant Sec'y for Civ. Rts., U.S. Dep't of Educ., and Vanita Gupta, Principal Dep. Assistant Att'y Gen. for Civ. Rts., U.S. Dep't of Just. (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605- title-ix-transgender.pdf ("The Departments treat a student's gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity."); Soule, 2021 WL 1617206, at *9 (describing relevant OCR guidance and concluding that notice was not clear).

44 policies do not. See, e.g., Grimm, 972 F.3d at 619; Barr, 949 F.3d at 1227; Doe ex rel.

Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir. 2018). The law is far

from clear, but, as the majority notes, we need not decide the merits issue, for it is

precisely because of this "confusion" and lack of clarity in the law that

Defendants did not have notice that the Policy violated Title IX -- even assuming

that it does. Hence, Plaintiffs' claim for damages is barred under Pennhurst,

irrespective of the merits.

C.

In Part IV of his concurrence, Judge Menashi argues that Bostock, a

Title VII case, is inapposite because Title IX, in contrast to Title VII, authorizes

distinctions among student athletes based on sex. Menashi, J., Concurrence at

15-16. But the fact that, in many circumstances, Title IX contemplates separate

high school sports teams for boys and girls tells us nothing about the question

before us here: whether Title IX "unambiguously" requires schools to prohibit

transgender students from participating on sports teams aligning with their

gender identity. Pennhurst, 451 U.S. at 17. If anything, Bostock's holding that

Title VII prohibits discrimination against individuals on the basis of their

transgender status, see Bostock, 140 S. Ct. at 1737, suggests that Title IX, which is

45 informed by Title VII, may call for inclusion, not exclusion, of transgender

individuals.

Judge Menashi writes that in Bostock "the Court accepted the

premise that 'sex' in Title VII refers "only to biological distinctions between male

and female.'" Menashi, J., Concurrence at 14 (quoting Bostock, 140 S. Ct. at 1739).

But the Court only accepted this proposition for the sake of argument. See 140 S.

Ct. at 1739 ("because the employees concede the point for argument's sake, we

proceed on the assumption that 'sex' signified what the employers suggest,

referring only to biological distinctions between male and female"). Indeed,

because the cases before it did not "turn[] on the outcome of the parties' debate,"

the Court specifically declined to decide whether "the term bore a broader scope,

capturing more than anatomy and reaching at least some norms concerning

gender identity and sexual orientation." Id.; see also Barr, 949 F.3d at 1227 ("[J]ust

because Title IX authorizes sex-segregated facilities does not mean that they are

required, let alone that they must be segregated based only on biological sex and

cannot accommodate gender identity."). Hence, the question remains open

46 whether the term "sex" in Title IX and its implementing regulations necessarily

means "biological sex." 18

Judge Menashi also writes that the bathroom cases are irrelevant

because "bathrooms are not athletic competitions." Menashi, J., Concurrence at

16. That may be so, but the bathroom cases are indeed relevant because they

involve Title IX and, as discussed above, at least some of the decisions have

suggested that Title IX allows or even requires trans-inclusive policies. The

existing case law -- including the bathroom cases -- did not "unambiguously" tell

funding recipients that Title IX was violated by a policy that permits transgender

students to compete in gender-specific athletic competitions consistent with their

18 As the Intervenors note, "Title IX's legislative history repeatedly attributes the lack of equal athletic opportunities, in part, to the socialization of girls and women to conform to sex stereotypes, not just biology." Intervenors' En Banc Br. at 40 (citing Sex Discrimination Regs. Hearings Before the Subcomm. on Postsecondary Educ. of the Comm. on Educ. & Labor, House of Representatives, 94th Cong. 189, 197 (1975)) (Statements of Sen. Birch Bayh and Rep. Stewart McKinney). Moreover, the term "biological sex" itself is ambiguous in circumstances in which various biological markers often associated with sex (such as chromosomes, gonads, hormones, and genitals) are not necessarily congruent. See generally Katrina Karkazis, The Misuses of "Biological Sex," 394 The Lancet 1898 (2019); see also Matter of Childers-Gray, 487 P.3d 96, 120 ¶ 86 (Utah 2021) ("At the very least, 'biological sex' is itself ambiguous and may mean more than the sex designated by examination at birth."). It is unclear whether resolution of these questions is even necessary to the outcome of Plaintiffs' claims. See Intervenors' En Banc Br. at 39-42. 47 gender identity. Defendants did not have clear notice that the Policy violated

Title IX -- even assuming it did.

IV.

"We do not allow plaintiffs to bring suit just because they oppose a

policy." Biden v. Nebraska, 143 S. Ct. 2355, 2385 (2023) (Kagan, J., dissenting). Yet

now that Plaintiffs' core claims for relief have been mooted by the pandemic and

their respective graduations, all that is really left is their disagreement with the

policy under which they previously competed.

We recognize that civil rights litigants -- and all of us -- are best

served when courts are cautious in limiting access to adjudication. But the

majority is inadequately cautious about observing the fundamental limitations

on this Court's judicial power. In too readily relaxing those limitations, the

majority invites courts to become arbiters of abstract social wrongs that they

have no real power to redress. The invitation works to undermine, rather than

protect, the rights of litigants like Andraya Yearwood and Terry Miller. We

respectfully dissent.