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Letter to the Hon. Kenneth L. Marcus, Assistant Secretary of Civil Rights for the Department of Education - Hayes Leads Connecticut Delegation Members And 22 House Democrats In Defending Connecticut's Gender-Inclusive Athletic Policy


Dear Assistant Secretary Marcus:

We write to you regarding the Letter of Impending Enforcement Action (Letter) issued by the Department of Education Office for Civil Rights (OCR) on May 15, 2020, against the Connecticut Interscholastic Athletic Conference (CIAC), Glastonbury, Bloomfield, Hartford, Cromwell, Canton, and Danbury, concluding that Article IX, Section B of the CIAC By-Laws, titled "Transgender Participation," violates Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq..

To say that this action is disappointing is an understatement. This compliance determination represents a disregard of the Department of Education's duty to prevent discrimination and denial of benefits in federally funded education programs for every American student. The Department continues a discriminatory and blatantly illegal pattern by this administration to enshrine discrimination against transgender people at all levels of society. The timing of the release of this ruling by the Department impacted all transgender students just days before Pride celebrations in June, a month in which we honor and celebrate the LGBTQ+ community. Further, it is more than ironic and hypocritical that the Department seeks to overturn a decision made at the state level to implement Title IX policy. Its actions completely contradict the deference in the law to state athletic officials, who in this case have painstakingly developed an inclusive policy with input from a diverse array of stakeholders.

According to the letter from the Department, the CIAC policy violated 34 C.F.R. § 106.41(a) because it "denied female student-athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits."[1] One piece of evidence cited in the letter to reach this determination states, "One complainant student-athlete explained to OCR that no matter how hard she trained, she felt that she could never be good enough to defeat Students A and B."[2] However, by the time this letter was released, at least one of the complainants had beaten one of her transgender competitors twice,[3] fundamentally undermining the validity of this accusation. In fact, the Letter cited 10 meets in which a cisgender female participant beat one or both of the transgender athletes in question.

As you state in your letter, "34 C.F.R. § 106.41 of Subpart D specifically applies to athletics."[4] Although OCR interpreted this subsection to determine the presence of transgender athletes would limit opportunity for cisgender female participants, you fail to acknowledge that through this determination, you solely punish women-identified students with physical attributes incongruent with stereotypical expectations for students assigned female at birth for the purposes of sports participation. Using Title IX to target a group of students who fail to meet your expectations of a female or male is not in the spirit or the letter of the law.

We write to underscore our deep concern that your recent determination not only discriminates against transgender youth, but may have broad implications for any student athlete whose physical attributes are incongruent with the assumptions of the Department of Education's Office for Civil Rights regarding what is standard for any person assigned female or male at birth. We ask that you revisit this ruling and all similar rulings that roll back the rights of transgender students in this country. We also ask that you provide us with answers to the following questions by July 1, 2020.

1. Why did the OCR refuse to follow its own Case Processing Manual to dismiss the complaints based upon the pending federal lawsuit involving the same parties and facts?

2. Why didn't OCR postpone its compliance determination in order to assess the import of the Supreme Court decisions in Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, regarding coverage for LGBT people under Title VII of the Civil Rights Act of 1964?

3. What specific legal authority did OCR use to determine Article IX, Section B of the CIAC By-Laws, titled "Transgender Participation," violates 34 C.F.R. § 106.41(a) of Subpart D of Title IX? Please include all specific policy guidance documents or case law that led you to this conclusion.

4. Why did OCR deviate from the Three Part Test in order to determine whether the recipient schools effectively accommodated students interests and abilities on a program wide basis pursuant to 34 C.F.R. § 106.41(c)(1)?

5. Why did OCR deviate from its approach of evaluating equal athletic opportunity of "other benefits and services" (i.e., the "laundry list" components) in an interscholastic investigation on a program wide basis, including any offsets, pursuant to 34 C.F.R. § 106.41(c)(2)-(10)?

6. Would OCR find Article IX, Section B of the CIAC By-Laws, titled "Transgender Participation," in violation of Title IX:
a. before any trans girls won any competitions?
b. if there were only complaints about trans boys competing with other boys?
c. if there were complaints about both trans boys and girls playing in accord with their gender identity?
d. as applied to team sports, junior varsity sports, freshman sports, club sports, middle school sports, or elementary school sports?

7. What specific legal authority did OCR rely on to apply a disparate treatment analysis in an athletics investigation to conclude the recipient schools violated 34 C.F.R. § 106.41(a) of Subpart D of Title IX? (See, e.g., "The athletic events in which female student-athletes competed were co-educational; female student athletes were denied the opportunity to compete in events that were exclusively female, whereas male students were able to compete in events that were exclusive female.") Please include all specific policy guidance documents or case law that led you to this conclusion.

8. Has the Department of Education met with citizen groups, advocacy groups, political groups, government officials, national or international sports bodies, or recognized medical experts -- either in direct reference to this complaint or to discuss or review the transgender students' participation in athletic activities, including sex-separated sports teams? Please list all such groups in your response.

9. Does the Department of Education intend to withhold federal funds meant to support school districts through the COVID-19 pandemic should they continue to allow transgender students to participate in sports according to their gender identity?

10. What specific enforcement action(s) does the Department of Education intend to take with respect to each recipient? Please describe all specific action(s) taken or anticipated to be taken, including any referral for administrative proceedings or referral to the Department of Justice.

11. Does OCR plan to suspend any further enforcement action based on either the federal lawsuit? If not, please describe any other enforcement activities taken since May 15, 2020.

Additionally, please include in your response a copy of the proposed resolution agreement(s) presented to CIAC and each of the public school recipients that OCR contends would have resolved its "compliance concerns" on or about February 12, 2020, or "remedy the identified violations" described in the Letter.

Thank you for your attention to this matter and we look forward to your response.