Mid Vermont PI

Case 2:23-cv-00652-gwc Document 14 Filed 12/19/23 Page 1 of 7
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF VERMONT
MID VERMONT CHRISTIAN SCHOOL,

on behalf of itself and its students and its
students’ parents; A.G. and M.G., by and
through their parents and natural guardians,
Chris and Bethany Goodwin;
CHRISTOPHER GOODWIN, individually;
BETHANY GOODWIN, individually; T.S.
and K. S., by and through their parents and Case No. 2:23-cv-00652-kjd
natural guardians, Nathaniel and Dawna
Slarve; NATHANIEL SLARVE, individually;
and DAWNA SLARVE, individually,
PLAINTIFFS’ MOTION FOR
Plaintiffs, PRELIMINARY INJUNCTION
v. (Oral Argument Requested)
HEATHER BOUCHEY, in her official

capacity as Interim Secretary of the Vermont
Agency of Education; JENNIFER DECK
SAMUELSON, in her official capacity as
Chair of the Vermont State Board of
Education; CHRISTINE BOURNE, in her
official capacity as Windsor Southeast
Supervisory Union Superintendent;
HARTLAND SCHOOL BOARD;
RANDALL GAWEL, in his official
capacity as Orange East Supervisory Union
Superintendent; WAITS RIVER VALLEY
(UNIFIED #36 ELEMENTARY)
SCHOOL BOARD; and JAY NICHOLS,
in his official capacity as the Executive
Director of The Vermont Principals’
Association,
Defendants.
Plaintiffs Mid Vermont Christian School, A.G., M.G., Christopher Goodwin, Bethany
Goodwin, K.S., T.S., Nathaniel Slarve, and Dawna Slarve respectfully move this Court for a
preliminary injunction pursuant to Fed. R. Civ. P. 65. This Motion is supported by: (1) the
attached Memorandum in Support, (2) the attached exhibits, (3) the attached Declaration of
Vicky Fogg, (4) the attached Declaration of Christopher Goodwin, (5) the attached Declaration
of Bethany Goodwin, (6) the attached Joint Declaration of Nathaniel and Dawna Slarve, and (7)
the Verified Complaint (ECF No. 1) (and the exhibits attached thereto). Plaintiffs request oral
argument on this Motion.
Two years ago, the Second Circuit held that Vermont could not exclude religious schools
from its Town Tuitioning or Dual Enrollment Programs. See In re A.H. v. French, 999 F.3d 98
(2d Cir. 2021) (Town Tuitioning); A.H. v. French, 985 F.3d 165 (2d Cir. 2021) (Dual
Enrollment). And just last year, the Supreme Court held that Maine’s similar tuition program
could not exclude religious schools due to their religious exercise. See Carson v. Makin, 596
U.S. 767, 789 (2022). Despite these clear precedents, Defendants have excluded Plaintiffs from
participating in these and other public programs because of their religious beliefs and exercise,
thereby depriving them of public funds that are generally available to secular private schools and
the students who attend those schools. In addition, Plaintiffs have been banned from participating
in Vermont-sponsored athletics and other extracurricular activities because they sought to adhere
to their religious beliefs on sex. Plaintiffs are thus currently barred—on account of their
religion—from two state programs that are available to others. The State has discriminated
against Plaintiffs based on their religion, acted with hostility to their religious beliefs, burdened
their free exercise rights, and infringed their free speech.
Plaintiffs satisfy the factors needed for a preliminary injunction. See New York ex rel.
Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015). Plaintiffs are likely to succeed
on the merits of their claims because Defendants’ actions and policies violate the First
Amendment. Id. At a minimum, Plaintiffs have raised “serious questions going to the merits of
1
[their] claims to make them fair ground for litigation” and the “balance of the hardships tip[ ]
decidedly in [their] favor” because they are currently losing out on public funds and athletic and
extracurricular activities. Id. (citation omitted). This is irreparable harm because Defendants have
violated Plaintiffs’ constitutional rights and students like A.G., M.G., T.S., and K.S. cannot
compete in Vermont sports causing them to potentially miss scholarship opportunities, awards,
and the like. See Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d Cir. 2020).
So Plaintiffs request that they “be restored to the position they would have occupied had the
government not violated their rights under the First Amendment to the U.S. Constitution.” In re
A.H., 999 F.3d at 108; see also N. Am. Soccer League, LLC v. United States Soccer Fed'n, Inc.,
883 F.3d 32, 37 (2d Cir. 2018) (citation omitted) (the status quo is “the last actual, peaceable
uncontested status which preceded the pending controversy”).
Specifically, Plaintiffs move this Court for a preliminary injunction:
1. Ordering Defendants Bouchey and Samuelson to: (a) approve Mid Vermont Christian
School as an approved independent school eligible to receive public funds and (b) allow the
School to participate in the Town Tuitioning and Dual Enrollment Programs.
2. Prohibiting Defendants Bouchey and Samuelson from requiring Mid Vermont
Christian School—as a condition to obtaining approved independent school status—to comply
with the Vermont Public Accommodations Act and Vermont Fair Employment Practices Act (via
Agency of Education Rule 2200) to the extent those laws prohibit the School from: (a) requiring
all employees to share and live out the School’s religious beliefs, (b) basing its locker room,
pronoun usage, dress code, and athletic team policies on biological sex and not gender identities,
and (c) requiring students’ parents to share and live out the School’s religious beliefs.
3. Prohibiting Defendants Bouchey and Samuelson from requiring Mid Vermont
Christian School—as a condition to obtaining approved independent school status—to adopt and
post a statement of nondiscrimination consistent with the Vermont Public Accommodations Act
and Vermont Fair Employment Practices Act.
2
4. Prohibiting Defendants Hartland School Board, Waits River Valley School Board,
Gawel, and Bourne from withholding or denying the payment of Town Tuitioning funds to Mid
Vermont Christian School for the high school students in their respective school districts who
attend Mid Vermont Christian, including for Plaintiff T.S.
5. Ordering Defendant Nichols to allow Mid Vermont Christian to rejoin the Vermont
Principals’ Association (“VPA”) as a full-status member eligible to participate in all VPA events
and activities.
6. Prohibiting Defendant Nichols from enforcing the VPA’s gender identity policy (or
any other VPA policy) against Mid Vermont Christian in such a way that would force the School
to: (a) compete against biological males on girls’ athletic teams (or vice versa), (b) allow
biological males on its own girls’ athletic teams (or vice versa), or (c) rewrite its own policies to
conform with the VPA’s gender identity policy.
7. Prohibiting all Defendants from penalizing Plaintiffs for: (a) speaking about matters
of marriage, sex, and gender in line with their religious views, or (b) following their religious
beliefs about marriage, sex, and gender.
8. Issuing the above-requested relief without bond.
Dated: December 19, 2023 Respectfully submitted,
s/ Michael J. Tierney
Michael J. Tierney
VT Bar No. 5275
Gretchen M. Wade
NH Bar No. 273726
WADLEIGH, STARR & PETERS, P.L.L.C.
95 Market Street
Manchester, NH 03101
Telephone: (603) 669-4140
Fax: (603) 669-6018
mtierney@wadleighlaw.com
gwade@wadleighlaw.com
3
s/ Ryan J. Tucker
Ryan J. Tucker*
AZ Bar No. 034382
David Cortman
AZ Bar No. 29490
Katherine Anderson*
AZ Bar No. 033104
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
Telephone: (480) 444-0020
rtucker@adflegal.org
dcortman@adflegal.org
kanderson@adflegal.org
Jacob Reed*
VA Bar No. 97181
44180 Riverside Parkway
Lansdowne, VA 20176
Telephone: (571) 707-4655
jreed@ADFlegal.org
Attorneys for Plaintiffs

*Admitted pro hac vice
4
CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2023, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system and served it on the following via electronic mail and
mail:
Steven J. Zakrzewski, Esq.

Gordon Rees Scully Mansukhani
95 Glastonbury Blvd, Suite 206
Glastonbury, CT 06033
Tel. 860-494-7511
Email: szakrzewski@grsm.com
Counsel for Defendant Jay Nichols
Pietro Lynn, Esq.

76 St. Paul Street
Suite 400
Burlington, VT 05401
Tel. 802-860-1500
Email: PLynn@lynnlawvt.com
Counsel for Defendants Hartland School Board,
Waits River Valley School Board, Randall Fawel,
and Christine Bourne
Laura C. Rowntree, Esq.

Patrick Gaudet, Esq.
Kate Gallagher, Esq.
Vermont Attorney General’s Office
109 State Street
Montpelier, VT 05609
Tel. 802-595-3717
Email: laura.rowntree@vermont.gov
patrick.gaudet@vermont.gov
kate.gallagher@vermont.gov
Counsel for Defendants Heather Bouchey
and Jennifer Deck Samuelson
s/ Ryan J. Tucker
Ryan J. Tucker
Counsel for Plaintiffs
5
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Local Rule 7(a)(7), I made a good faith attempt to obtain
the opposing parties’ agreements to Plaintiffs’ requested relief. On December 15, 2023, I emailed
counsel for all Defendants and requested that Defendants agree to Plaintiffs’ requested relief. To
date, the Parties have not reached an agreement on Plaintiffs’ request. In addition, I informed
counsel for Defendants that Plaintiffs are amenable to agreeing to a briefing schedule on this
motion.
s/ Ryan J. Tucker
Ryan J. Tucker
6
Case 2:23-cv-00652-gwc Document 14-1 Filed 12/19/23 Page 1 of 21

DISTRICT OF VERMONT

and K. S., by and through their parents and Case No. 2:23-cv-00652-kjd
MEMORANDUM IN SUPPORT OF
Plaintiffs, PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
v.

Association,
Defendants.
TABLE OF CONTENTS
Introduction ..................................................................................................................................... 1
Statement of Facts ........................................................................................................................... 2
A. Plaintiffs and their religious beliefs and practices. ..........................................................2
B. The State devises a new way to exclude religious schools from the Town Tuitioning
and Dual Enrollment Programs. ......................................................................................4
C. The State boots Mid Vermont Christian from the VPA because the School operates
according to its religious beliefs. .....................................................................................6
Argument ........................................................................................................................................ 8
I. Plaintiffs are likely to succeed on the merits of their claims. .......................................... 8
A. The State excludes Plaintiffs from the Program and the VPA because of their religious
beliefs and practices. .......................................................................................................8
B. The State has engaged in unconstitutional religious hostility........................................10
C. Vermont’s policies are not neutral or generally applicable. ..........................................11
D. Vermont infringes Plaintiffs’ freedom of speech...........................................................13
E. Vermont’s policies fail strict scrutiny. ...........................................................................14
II. Plaintiffs satisfy the remaining preliminary injunction factors. ..................................... 15
Conclusion .................................................................................................................................... 15
i
TABLE OF AUTHORITIES
Cases
303 Creative, LLC v. Elenis, 600 U.S. 570 (2023) ....................................................................... 14
A.H. v. French, 985 F.3d 165 (2d Cir. 2021) ............................................................................ 1, 10
Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020)............................................. 15
B. P. J. v. West Virginia State Board of Education,

649 F. Supp. 3d 220 (S.D.W. Va. 2023) ............................................................................. 3
Carson v. Makin, 596 U.S. 767 (2022) .................................................................................. passim
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)........................ 12, 13
Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) ................................... 9, 10
Fellowship of Christian Athletes v. San Jose Unified School District Board of Education,
82 F.4th 664 (9th Cir. 2023) ............................................................................................. 13
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) .............................................. 11, 12, 13, 14
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

515 U.S. 557 (1995) .......................................................................................................... 14
In re A.H. v. French, 999 F.3d 98 (2d Cir. 2021) ................................................................. 1, 4, 10
Janus v. AFSMCE Council 31, 138 S. Ct. 2448 (2018) .......................................................... 14, 15
Kravitz v. Purcell, No. 22-764, 2023 WL 8177114 (2d Cir. Nov. 27, 2023) ............................... 12
Lyng v. North Indian Cemetery Protective Association, 485 U.S. 439 (1988) ............................... 8
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

138 S. Ct. 1719 (2018) ................................................................................................ 10, 11
North American Soccer League, LLC v. United States Soccer Federation, Inc.,
883 F.3d 32 (2d Cir. 2018).................................................................................................. 8
New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) .............................. 8
Obergefell v. Hodges, 576 U.S. 644 (2015).................................................................................. 10
Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............................................................................. 13
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) ............................................. 13
ii
SAM Party of New York v. Kosinski, 987 F.3d 267 (2d Cir. 2021)............................................... 15
Tandon v. Newsom, 141 S. Ct. 1294 (2021) ................................................................................. 13
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017)............................ 9, 10
Statutes
9 V.S.A. § 4502............................................................................................................................... 5
9 V.S.A. § 4502(d) ........................................................................................................................ 13
9 V.S.A. § 4502(h) ........................................................................................................................ 13
9 V.S.A. § 4502(l) ......................................................................................................................... 13
16 V.S.A. § 166(b) ........................................................................................................................ 12
16 V.S.A. § 822............................................................................................................................. 10
16 V.S.A. § 822(a)(1) ..................................................................................................................... 4
16 V.S.A. § 824............................................................................................................................. 10
16 V.S.A. § 828............................................................................................................................... 4
21 V.S.A. § 495(a) .......................................................................................................................... 5
Regulations
7-1 Vt. Code R. § 3:2220 ................................................................................................................ 4
7-1 Vt. Code R. § 3:2222 ................................................................................................................ 4
7-1 Vt. Code R. § 3:2223.3 ........................................................................................................... 12
7-1 Vt. Code R. § 3:2225.1 ............................................................................................................. 4
7-1 Vt. Code R. § 3:2225.1(b) ...................................................................................................... 12
7-1 Vt. Code R. § 3:2226.6 ................................................................................................... 4, 9, 14
7-1 Vt. Code R. § 3:2227 .............................................................................................................. 12
iii
INTRODUCTION
Mid Vermont Christian School is a private religious school in Quechee, Vermont. The
School’s goal above all else is to “glorify God ... through a program of academic excellence
established in Biblical truth,” so it holistically educates its students in a biblical worldview
through everything it does—from curriculum to the basketball court. The School operates
according to its belief that God uniquely created humans as male or female, that sex is
immutable, and that marriage is the uniting of one man to one woman.
Vermont wants the School to operate—and thus believe—differently to participate in public
programs. But that’s unconstitutional. The government can’t pressure religious schools to change
their beliefs or punish them for adhering to their faith. Vermont’s discrimination against the
School comes in two forms.
First, for decades, Vermont discriminated against religious schools by excluding them from
the State-funded Town Tuitioning and Dual Enrollment Programs (collectively, the “Program”).
The Second Circuit ended that discrimination in 2021. See In re A.H. v. French, 999 F.3d 98 (2d
Cir. 2021) (Town Tuitioning); A.H. v. French, 985 F.3d 165 (2d Cir. 2021) (Dual Enrollment).
And just last year, the Supreme Court admonished Maine for likewise depriving religious
schools of public funds based on their “religious exercise.” See Carson v. Makin, 596 U.S. 767,
789 (2022). But Vermont’s Agency and Board of Education (“Agency” and “Board,”
respectively) have simply found a new way to accomplish the same end—by adopting new rules
that require the School to hire those who do not share its faith and to alter its policies on
admissions, locker rooms, pronoun use, dress codes, and athletic teams. The Agency and Board
refused to accommodate the School’s faith, causing its students and families to lose the tuition
funds promised to them.
Second, the Vermont Principals’ Association (“VPA”) expelled the School from
membership—without written warning or notice—because the School forfeited a girls’
basketball game rather than compete against a team with a biological male. Although the VPA’s
1
own rules prohibit boys from competing in girls’ sports, the VPA requires the School to treat
biological males as girls in certain circumstances, which the School’s religious beliefs forbid it
from doing. By expelling the School, the VPA has barred all of its students from competing in
any VPA events or competitions—from girls’ basketball games to science fairs.
The Agency, Board, and VPA (collectively, “the State” or “Vermont”) have punished
Plaintiffs, simply for adhering to their Christian beliefs. A preliminary injunction is needed to
end the State’s religious discrimination.
STATEMENT OF FACTS
A. Plaintiffs and their religious beliefs and practices.
Mid Vermont Christian is a private, Christian, pre-K through 12th grade school.
Declaration of Vicky Fogg (“Fogg Decl.”) ¶ 4. Mid Vermont Christian’s religious beliefs, rooted
in the Bible, form the foundation for everything it does. Id. ¶¶ 4–5. Relevant here are the
School’s beliefs on marriage, sexuality, and gender: the School believes that God creates each
person as immutably male or female, that sex is determined biologically, and that marriage is
only the uniting of one man and one woman. Id. ¶ 8. The School also believes that every person
deserves compassion, kindness, respect, dignity, and the love of Christ, regardless of their beliefs
or background. Id. ¶ 9. Consistent with the School’s purpose “to glorify God by preparing each
student,” MVCS Webpages at 2 (ECF No. 1-1), the School inculcates a biblical worldview in its
students through word and deed, Fogg Decl. ¶¶ 10–16.
Mid Vermont Christian’s religious beliefs—including those on sexuality and gender—
guide its admissions, employment, and operations policies. Id. ¶ 17. First, the School requires at
least one parent of each student to be a Christian who agrees with the School’s religious beliefs.
Id. ¶ 19. Second, to advance the School’s mission, it employs only coreligionists—those who
share and live according to its religious beliefs. Id. ¶ 18. Third, the School separates locker
rooms and restrooms, uses pronouns, has a dress code, and divides its own athletic teams based
on biological sex, not “gender identity.” Id. ¶ 20.
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And because the School teaches, models, and professes biblical truths about sex and gender
not only in the classroom but also on the court, the School believes that treating biological males
as girls during athletic competitions would affirm that biological males can actually be girls. Id. ¶
21. The School believes this would make it complicit in furthering the falsity that sex is mutable
and biological differences do not matter. Id. ¶ 22. The School also believes God’s purposeful
design of females and males is paramount in athletics because males have significant size,
weight, and physical advantages over females. Id. ¶ 98; see B. P. J. v. W. Virginia State Bd. of
Educ., 649 F. Supp. 3d 220, 231 (S.D.W. Va. 2023) (“it is generally accepted that, on average,
males outperform females athletically because of inherent physical differences between the
sexes.”); accord White Paper of Dr. Chad T. Carlson, M.D., attached as Exhibit 12 (risk of
female injury increases when biological males compete in women’s sports) 1. So the School
believes and teaches that boys and girls should not engage in inappropriate physical contact,
including subjecting girls to competitive athletic competition against biological boys. Id. ¶ 99.
Plaintiffs A.G., M.G., and Chris and Bethany Goodwin (“the Goodwins”) and T.S., K.S.,
and Nathaniel and Dawna Slarve (“the Slarves”) selected Mid Vermont Christian because of the
School’s biblical worldview and religious practices. Declaration of Chris Goodwin (“C.
Goodwin Decl.”) ¶ 7; Declaration of Bethany Goodwin (“B. Goodwin Decl.”) ¶ 7; Joint
Declaration of Nathaniel and Dawna Slarve (“Slarve Decl.”) ¶ 6. The Goodwins and Slarves all
share Mid Vermont Christian’s religious beliefs. C. Goodwin Decl. ¶¶ 7–14; B. Goodwin Decl.
¶¶ 7–14; Slarve Decl. ¶¶ 6–12.
Chris is the School’s head girls’ varsity basketball coach, and his daughter, M.G. is a
member of the team. C. Goodwin Decl. ¶¶ 4, 6. His son, A.G., plays on the boys’ basketball and
track teams. Id. ¶ 3. T.S. also plays basketball, and K.S. plays volleyball. Slarve Decl. ¶¶ 3–4.
All four desire to play at the School and compete in the VPA. Id. ¶ 5; C. Goodwin Decl. ¶ 5.
1
This type of evidence is not necessary to support the School’s religious beliefs about biology
and safety in girls’ sports, but it confirms the biological differences between males and females.
3
B. The State devises a new way to exclude religious schools from the Town
Tuitioning and Dual Enrollment Programs.
Vermont’s Town Tuition Program requires school districts that do not operate public high
schools to pay for students who reside in the district to attend a public high school or a private
independent high school. 16 V.S.A. § 822(a)(1). Private schools must obtain “approved
independent school” status as determined by the Board to participate in the Program and thus to
receive public tuition funds. 16 V.S.A. § 828; id. § 166(b); 7-1 Vt. Code R. § 3:2220, et seq.
(“Rule 2200”). “Recognized independent schools,” on the other hand, are ineligible to receive
tuition payments under the Program. 16 V.S.A. § 828; 7-1 Vt. Code R. §§ 3:2222, 3:2225.1.
For several years, Vermont school districts refused Program tuition payments to religious
schools. In re A.H., 999 F.3d 98, 100 (2d Cir. 2021). In 2021, however, the Second Circuit held
that Vermont’s refusal to provide Program funding to religious schools was unconstitutional,
explaining that religious schools “ha[d] been deprived of a public benefit as a result of the state’s
and the school districts’ decades-long policy of unconstitutional religious discrimination.” Id. at
108. So religious schools were “entitled to [Program] funding to the same extent as” secular
schools, “regardless of [their] religious affiliation or activities.” Id. Similarly, just last year the
Supreme Court held that Maine’s tuition assistance program—which is much like Vermont’s
Program—discriminated against religious schools and families. Carson, 596 U.S. 767. After
these decisions, the Agency reluctantly conceded that “[s]chool districts may not deny tuition
payments to religious approved independent schools.” French Mem. at 1 (ECF No. 1-4).
Attempting to sidestep these precedents, in 2022 the Agency changed how private schools
could become “approved independent schools” and thus eligible to receive Program funds.
Specifically, the Agency amended Rule 2200 to require schools to (1) post a nondiscrimination
statement consistent with the Vermont Public Accommodations Act and Fair Employment
Practices Act on their website and in application materials, and (2) sign an assurance confirming
that the school complies with the Public Accommodations Act “in all aspects of the school’s
admissions and operations.” 7-1 Vt. Code R. § 3:2226.6. The Public Accommodations Act and
4
Fair Employment Practices Act, in turn, prohibit discrimination based on sexual orientation,
gender identity, and religion (among other classes) in services and employment. 9 V.S.A. §
4502; 21 V.S.A. § 495(a).
Each school—including Mid Vermont Christian—seeking approved independent status was
then required to affirm compliance with these new provisions by signing an addendum to their
application. See Addendum for Independent Schools at 1 (ECF No. 1-5). Mid Vermont Christian
signed the addendum but clarified it was signing with the understanding that “the school has a
statutory and constitutional right to make decisions based on its religious beliefs, including hiring
and disciplining employees, associating with others, and in its admissions, conduct, and
operations policies and procedures.” Id. The School added that it could not adopt the required
nondiscrimination language or affirm compliance with the Public Accommodations Act “to the
extent [the language or Act] conflict[s] with any of the school’s [religious] beliefs, including on
marriage and sexuality.” Id.
Because Mid Vermont Christian “decline[d] to provide assurances that [it] will comply with
the Vermont Public Accommodations Act,” “indicate[d] that its handbook and website may not
be consistent with the Act,” and “suggest[ed] that it may not follow the Act ‘in its admissions,
conduct, and operations policies and procedures,’” the Board refused to approve the School until
it submitted an unaltered, unequivocal addendum. See French 02/01/23 Memo, attached as
Exhibit 1; Board 03/21/23 Email, attached as Exhibit 3. The School could not do so without
abandoning its religiously based policies. Fogg Decl. ¶¶ 49, 55; MVCS 03/09/23 Letter to Board,
attached as Exhibit 2. Then in August, the Agency told the School that it considered it a
“Recognized Independent School,” confirming the School’s denial of approved independent
status. Id. ¶ 54; AOE Status Letter at 1 (ECF No. 1-6).
As a result, Defendants Hartland and River Valley School Boards, through their respective
Superintendents (Defendants Bourne and Gawel), recouped Town Tuitioning payments initially
made to Mid Vermont Christian. Fogg Decl. ¶¶ 58–63. That included payments made for
5
Plaintiff T.S. Slarve Decl. ¶¶ 17–25. As of today, Mid Vermont Christian and the Slarves cannot
receive Town Tuitioning or Dual Enrollment funds. Id. ¶ 25, 32; Fogg Decl. ¶¶ 67, 73–75.
C. The State boots Mid Vermont Christian from the VPA because the School
operates according to its religious beliefs.
As if excluding Mid Vermont Christian and its families from generally available public
funding wasn’t enough, the VPA—the State’s only sports association that includes both public
and private schools—expelled and refused to readmit the School because of its religious views
about sex and gender. The VPA did so because, at bottom, it disagrees with the School’s
religious views about what it means to be a “girl.” The VPA believes sex is based on identity, so
it allows student-athletes to “participate in VPA activities in a manner consistent with their
gender identity.” VPA Athletic Policies § 2 (ECF No. 1-9) (“gender identity policy”). The VPA
incorporates Agency Guidance, id., which agrees: “students should be permitted to participate in
physical education and sports in accordance with the student’s gender identity,” AOE Best
Practices for Schools at 6 (ECF No. 1-3) (“Agency Guidance”). And so Mid Vermont Christian
must apply this rule to its own teams, meaning the School would have to rewrite its policies and
allow biological boys who identify as female on its girls’ teams, thus undermining its belief that
sex is immutable and that only biological females are girls. Fogg Decl. ¶ 91.
In direct conflict with the VPA’s gender identity policy is its fairness policy. That policy
prohibits boys from competing in “traditional girls’ sports” because the association “recognizes
traditional boys-dominated sports and the need to protect opportunities for girl athletes.” VPA
Athletic Policies § 16.11 (ECF No. 1-9). Per the fairness policy, “[i]nterscholastic athletics
involving mixed (boys/girls) competition is prohibited except in those instances where the
member school does not offer equivalent (same) activities for girls.” Id. (emphasis added).
When the School’s girls’ basketball team was set to face a team with a male who identifies
as female 2, it asked that it not be forced to do so, consistent with its religious beliefs and the
2
Video of the biological male repeatedly blocking shots, fouling girls, and using his height
advantage is available at: Proctor HS Athletics, V Ladies vs Long Trail, YOUTUBE (Feb. 7,
6
VPA’s fairness policy. Fogg Decl. ¶¶ 93–101. The School wanted to adhere to its beliefs about
sex and gender and did not want to participate in an event communicating that biological boys
can be girls. Id. ¶ 103; C. Goodwin Decl. ¶¶ 20–24. The VPA refused, invoking its gender
identity policy, Vermont’s Public Accommodations Act, and the Agency Guidance. See VPA
2/16/23 Email to MVCS, attached as Exhibit 6. The VPA said it did “not intend to violate [its]
policy by honoring [the School’s] request.” Id.
Yet the VPA saw no issue with violating its fairness policy. Resolving the tension between
the gender identity policy and the fairness policy depends on what it means to be a “girl.” The
School’s religious beliefs answer that question differently than the VPA, so it decided to forfeit
the game rather than adopt the State’s view and compromise its religious beliefs.
In response, the VPA ignored its own disciplinary procedures—including the requirement
that it submit a written notice of probable violation, see VPA Athletic Policies § 12 (ECF No. 1-
9)—and immediately expelled Mid Vermont Christian from the association even though other
schools have historically forfeited games without VPA repercussion. Fogg Decl. ¶ 107. The VPA
then falsely informed the media that no appeal procedure was available to the School and that the
VPA first learned of the School’s rationale for forfeiting the game through a news article. Id. ¶¶
111–112. Worse still, days after the scheduled game, Defendant Nichols criticized the School for
allegedly supporting “blatant discrimination under the guise of religious freedom.” Id. ¶ 108.
The VPA eventually allowed Mid Vermont Christian to appeal, and the School reiterated its
religious justification for its decision. See MVCS Appeal Letter, attached as Exhibit 8. But the
VPA’s Activity Standards Committee unanimously upheld the VPA’s “penalty of expulsion.”
2023), https://www.youtube.com/watch?v=oLXZMrLTLRU&t=2291s (Minute markers: 13:41,

1:01:24, 1:06:31, 1:20:24, 1:25:51, 1:26:32, 1:34:19, 1:02:31, 1:11:11, 1:29:45); and Poultney
High School, Poultney vs Long Trail Var Girls Girls’ Varsity Basketball, YOUTUBE (Feb. 14,
2023), https://www.youtube.com/watch?v=tEUc dg8Amg&t=589s) (Minute markers: 35:08,
42:28, 44:00, 1:00:47, 1:13:37, 1:18:21, 1:20:42, 1:28:08, 1:28:31). For the convenience of the
Court, a spliced video of the relevant actions is available at
https://vimeo.com/850274119/14b4023ced. And just last week, the male elbowed an opposing
player, knocking her out for the remainder of the game. Brandon Canevari, Long Trail School
pulls off comeback, Bennington Banner (Dec. 15, 2023), https://perma.cc/DG7X-8PU2.
7
See VPA Appeal Decision at 5, attached as Exhibit 9. Appointing itself the theological arbiter
over the School, the VPA declared that the School’s religious justification for its decision was
“wrong,” that it “ha[d] nothing to do with [religious] beliefs,” and that “[p]articipating in an
athletic contest does not signify a common belief with the opponent.” Id. at 4. According to the
Committee, the School’s religious concerns were baseless because, after all, BYU athletes “do
not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame.” Id.
After missing out on spring 2023 VPA competitions, Mid Vermont Christian asked the
VPA how it could regain membership. Fogg 9/21/23 Email to VPA, attached as Exhibit 10.
Defendant Nichols pointed back to the VPA’s expulsion decision and told the School it must
explain how the School would comply with the gender identity policy. Nichols 9/28/23 Email to
MVCS, attached as Exhibit 11. Unable to do so, the School sued. Mid Vermont Christian and its
students—including Plaintiffs M.G., A.G., K.S., and T.S.—remain excluded from all VPA
activities and competitions. Fogg Decl. ¶ 124; C. Goodwin Decl. ¶ 27; Slarve Decl. ¶ 31.
ARGUMENT
A preliminary injunction is warranted because (1) Plaintiffs are likely to succeed on the
merits of their claims—or at the very least have raised sufficiently serious questions going to the
merits, and the balance of hardships tip in their favor; (2) Plaintiffs are experiencing irreparable
harm; and (3) an injunction is in the public interest. New York ex rel. Schneiderman v. Actavis
PLC, 787 F.3d 638, 650 (2d Cir. 2015). Plaintiffs seek a prohibitive preliminary injunction
restoring the status quo ante—returning the parties to “the last actual, peaceable uncontested
status which preceded the pending controversy.” N. Am. Soccer League, LLC v. United States
Soccer Fed'n, Inc., 883 F.3d 32, 37 (2d Cir. 2018) (citation omitted).
I. Plaintiffs are likely to succeed on the merits of their claims.
A. The State excludes Plaintiffs from the Program and the VPA because of their
religious beliefs and practices.
Because the Free Exercise Clause protects against “indirect coercion or penalties on the free
exercise of religion,” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988),
8
Vermont cannot exclude “otherwise eligible schools” like Mid Vermont Christian from a public
benefit on the basis “of [its] religious exercise,” Carson, 596 U.S. at 789. The Supreme Court
has held three times within the last six years that this religious discrimination is “odious to our
Constitution.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017).
First, Trinity Lutheran held that Missouri could not exclude a preschool from a playground
resurfacing grant simply because the preschool was operated by a church. See id. Next, Espinoza
v. Montana Department of Revenue held that religious schools and their families must be
allowed to participate in a public scholarship program equally with secular schools. 140 S. Ct.
2246 (2020). The Court explained that “[a] State need not subsidize private education. But once
a State decides to do so, it cannot disqualify some private schools solely because they are
religious.” Id. at 2261. And just last year, Carson held that Maine could not exclude sectarian
private schools from the state’s tuition assistance program. 596 U.S. at 789. Trying to avoid
Trinity Lutheran and Espinoza, Maine argued it did not exclude religious schools based on their
religious status but only based on their religious use, insisting that “a school is excluded only if it
promotes a particular faith and presents academic material through the lens of that faith.” Id. at
2001. The Court rejected that argument, noting the very reason religious schools exist is to teach
their faith. “Any attempt to give effect to such a [status/use] distinction,” the Court continued,
would raise serious constitutional concerns. Id. “[T]he prohibition on status-based discrimination
under the Free Exercise Clause is not a permission to engage in use-based discrimination.” Id.
These “‘unremarkable’ principles” are dispositive here. Id. at 1997. To even get in the door
of the Town Tuitioning Program, Mid Vermont Christian must agree to comply with the
Vermont Public Accommodations Act “in all aspects of [its] admissions and operations.” 7-1 Vt.
Code R. § 3:2226.6. And because religion, sexual orientation, and gender identity are included in
that Act, the School cannot hire only coreligionists; align its internal policies on locker room
usage, pronouns, dress code, and athletics with its religious beliefs; or require parents to share its
religious beliefs. In the end, the School has two choices: (1) participate in the Program, or (2)
9
continue its religious exercise. By putting the School to that decision, the Agency and Board 3
“penalize[ ] the free exercise of religion,” triggering strict scrutiny. Carson, 596 U.S. at 780.
(cleaned up). The Slarves, too, are being “penalize[d]” because they “cho[se] a religious private
school rather than a secular one.” Espinoza, 140 S. Ct. at 2261.
The VPA puts the School to the same unconstitutional choice. The VPA offers an
educational benefit to all: “[a]ny school in Vermont approved by the [Board] is eligible to
become a school member,” VPA Bylaws at 1 (ECF No.1-2), and “a wide range of private
schools are eligible” to participate, Carson, 596 U.S. at 780. Yet the VPA conditions Mid
Vermont Christian’s participation on adopting the State’s view on sex and gender. The School
declined to promote the ideas that sex is mutable and that a student’s status as boy or girl is
based on identity not sex, so it was punted from the VPA. In short, the VPA “exclude[s] [Mid
Vermont Christian] on the basis of [its] religious exercise.” Id. at 789; Trinity Lutheran, 582 U.S.
at 458–461.
B. The State has engaged in unconstitutional religious hostility.
Plaintiffs’ beliefs about marriage, sexuality, and gender are “decent and honorable” beliefs
based on their religion. Obergefell v. Hodges, 576 U.S. 644, 672 (2015). At a minimum, the Free
Exercise Clause requires Vermont to be neutral and tolerant toward these beliefs. Masterpiece
Cakeshop, Ltd. v. Colorado C.R. Comm'n, 138 S. Ct. 1719, 1731 (2018). “[E]ven slight
suspicion” that Vermont acted with “animosity to religion or distrust of its practices” is enough
to violate the Constitution. Id. (citation omitted). The State here acted with hostility to the
School’s “religious viewpoint.” Id. That hostility is evident in three ways.
First, Vermont has a history of excluding religious schools from public benefits. See., e.g.,
A.H. v. French, 985 F.3d 165; In re A.H., 999 F.3d 98. Despite the French cases, Trinity
Lutheran, Espinoza, and Carson, the Agency still refused Mid Vermont Christian approved
3
Defendants Hartland and River Valley School Boards, Bourne, and Gawel are responsible for
making Program payments and acted under the directive of the Agency and Board. See V.S.A.
§§ 822, 824. They are included in all references to the Agency or Board below.
10
independent status only because of the School’s religious beliefs and practices. So the Agency
allows religious schools to “participate” in the Program so long as they stop operating according
to their religion. Finding new ways to exclude religious schools hardly satisfies “fair and neutral
enforcement” of the law. Masterpiece, 138 S. Ct. at 1729.
Second, the VPA skirted its own disciplinary procedures when it expelled the School. VPA
procedure required an initial investigation and probable violation finding. VPA Athletic Policies
§ 12 (ECF No. 1-9). Instead, the VPA informed the media that Mid Vermont Christian had no
appellate remedy and then made an “immediate determination of ineligibility.” VPA Press
Release at 1 (ECF No. 1-10). And even when the VPA belatedly gave the School its procedural
rights, the VPA sidestepped the School’s religious justifications, flatly concluding that the
School was “wrong” and that the “case ha[d] nothing to do with beliefs.” See Ex. 9. But
“government has no role in deciding or even suggesting whether the religious ground for [a]
conscience-based objection is legitimate or illegitimate.” Masterpiece, 138 S. Ct. at 1731. And
the VPA handed the School the most extreme punishment (expulsion) even though other VPA
schools have forfeited games for non-religious reasons without penalty. Fogg Decl. ¶ 107.
Third, Defendant Nichols asserted that Mid Vermont Christian engaged in discrimination
under “the guise of religious freedom,” Nichols’ Testimony at 2 (ECF No. 1-10), the same
hostile rhetoric lodged against the religious litigant in Masterpiece, 138 S. Ct. at 1729
(decisionmaker complaining that “freedom of religion has been used to justify discrimination”).
The State cannot act with hostility toward Plaintiffs because it dislikes their convictions.
C. Vermont’s policies are not neutral or generally applicable.
Vermont violates the Free Exercise Clause for another reason: Rule 2200 and the VPA’s
gender identity policy and actions are neither neutral nor generally applicable and fail strict
scrutiny. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876–77 (2021).
General Applicability. A regulation fails general applicability if: (1) it “prohibits religious
conduct while permitting secular conduct that undermines the government’s asserted interests in
a similar way,” or (2) it “invites the government to consider the particular reasons for a person’s
11
conduct by providing a mechanism for individualized exemptions.” Fulton, 141 S. Ct. at 1877
(citations omitted and cleaned up). Rule 2200 and the VPA’s gender identity policy do both.
To start, the independent school approval process has at least two mechanisms that permit
the State to make individualized exemptions. First, Vermont statute allows the Board to approve,
and the Agency to recommend approval for, an independent school if it finds that the school
“substantially complies” with state law. 16 V.S.A. § 166(b); 7-1 Vt. Code R. § 3:2223.3; id. §
3:2227. “Substantial compliance” is not defined, so the Agency and Board have complete
discretion “to decide which reasons for not complying with [state statute or regulation] are
worthy of solicitude.” Fulton, 141 S. Ct. at 1879. Second, the Agency can “approve[ ] an
exception” and permit tuition payments to a non-eligible school for special education
placements. 7-1 Vt. Code R. § 3:2225.1(b).
The VPA also makes individualized assessments in two ways. For one, transgender
“[p]articipation in competitive athletic activities and sports [are to] be resolved on a case-by-case
basis.” Agency Guidance at 6 (ECF. No 1-3); see VPA Athletic Policies § 2 (ECF No. 1-9)
(incorporating Agency Guidance). Second, the VPA has sole discretion to “assess appropriate
sanctions.” VPA Athletic Policies § 12 (ECF No. 1-9). So the VPA gets to “consider the
particular reasons,” Fulton, 141 S. Ct. at 1877, when a school forfeits and what punishment to
give. Indeed, other VPA schools have forfeited games for secular reasons—like not wanting to
compete against unmasked players during the pandemic—and yet faced no repercussions. Fogg
Decl. ¶ 107. But the VPA ousted Mid Vermont Christian when it forfeited for religious reasons.
This “devalues religious reasons ... by judging them to be of lesser import than nonreligious
reasons” and “single[s] out” “religious practice ... for discriminatory treatment.” Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537–38 (1993); see also Kravitz v.
Purcell, No. 22-764, 2023 WL 8177114, at *7 (2d Cir. Nov. 27, 2023) (“courts cannot inquire
into the centrality or importance of” religious beliefs).
12
The “very fact that [Rule 2200 and VPA policies] require a case-by-case analysis is
antithetical to a generally applicable policy.” Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 688 (9th Cir. 2023). So the State “may not refuse
to extend [an exemption] to cases of religious hardship without compelling reason.” Fulton, 141
S. Ct. at 1878 (cleaned up and citation omitted).
Next, both Rule 2200 and the VPA’s gender identity policy require Mid Vermont Christian
to comply with the Vermont Public Accommodations Act, but that law contains several
exemptions that undermine any purportedly compelling interest. See, e.g., 9 V.S.A. § 4502(d)
(permitting small lodging facilities to discriminate based on sex or marital status); id. § 4502(h)
(exempting entities in cases of “direct threat[s] to the health or safety of others”); id. § 4502(l)
(partially exempting religious organizations for weddings). Because that law is underinclusive
and not generally applicable, so too is Rule 2200 and the VPA’s gender identity policy. See
Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (regulations are not generally applicable
whenever “they treat any comparable secular activity more favorably than religious exercise”).
Neutrality. The State also falls short of the First Amendment’s neutrality requirement. First,
Rule 2200 “in its real operation” creates a “religious gerrymander” that excludes only those
religious schools that hire coreligionists, are selective in their admissions based on religion, or
have policies based on religion. Lukumi, 508 U.S. at 535 (citation omitted). Although French and
Carson held that Vermont cannot exclude religious schools from the Program, the State now
requires religious schools to stop operating consistent with their faith if they want to participate.
Second, the VPA has “single[d] out [Plaintiffs] for especially harsh treatment,” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020), by completely banning them from
future VPA activities when the VPA has allowed other schools to forfeit without penalty.
D. Vermont infringes Plaintiffs’ freedom of speech.
Rule 2200 and the VPA’s gender identity policy also infringe Plaintiffs’ free speech rights
by censoring and compelling their speech based on “the idea or message expressed.” Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015).
13
Start with the school’s protected speech. “[T]he First Amendment protects an individual’s
right to speak his mind regardless of whether the government considers his speech sensible and
well intentioned or deeply misguided.” 303 Creative, LLC v. Elenis, 600 U.S. 570, 586 (2023)
(cleaned up). The School engages in protected speech when it communicates that sex is based on
biology, unchangeable, and predetermined by God. Fogg Decl. ¶ 8.
But the State forces the School to contradict those messages. Both Rule 2200 (by
incorporating the Vermont Public Accommodations Act) and the VPA’s policies address gender
identity issues and thus regulate the School’s use of pronouns and other speech on sex and
gender. In fact, the Agency’s Guidance—incorporated into the VPA’s gender identity policy—
states that “[s]tudents should be addressed by school staff by the name and pronoun
corresponding to their gender identity.” Agency Guidance at 5 (ECF No. 1-3). Compelling the
School “to affirm in one breath that which they deny in the next” violates free speech guarantees.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 576 (1995). In
addition, Rule 2200 compels the School to post a nondiscrimination statement and sign an
assurance. 7-1 Vt. Code R. § 3:2226.6. In this way, too, the State “command[s] involuntary
affirmation” that forces the School to “betray[ ] [its] convictions.” Janus v. AFSMCE Council 31,
138 S. Ct. 2448, 2464 (2018) (cleaned up).
In short, Plaintiffs “must either speak as the State demands” or be excluded from public
tuition and sports “for expressing [their] own beliefs.” 303 Creative, 600 U.S. at 589. That’s a
content-based speech restriction that must face strict scrutiny, which it fails. Infra § I.E.
E. Vermont’s policies fail strict scrutiny.
To survive strict scrutiny, Vermont’s policies “must advance interests of the highest order
and must be narrowly tailored in pursuit of those interests.” Carson, 596 U.S. at 780 (cleaned
up). The State fails both prongs.
The existence of categorical and individualized exemptions under the policies dooms any
purported compelling interest because they “undermine[ ] [any] contention” that the “non-
discrimination policies can brook no departures.” Fulton, 141 S. Ct. at 1882. When the School
14
requested narrow religious exemptions, neither the Agency, Board, nor VPA seriously
considered the School’s requests or gave any reason why an exemption could not be granted.
Nor does the State have a compelling interest in stifling the School’s speech. Issues related
to gender identity are “undoubtedly [a] matter[ ] of profound value and concern to the public”
and speech about it “occupies the highest rung of the hierarchy of First Amendment values and
merits special protection.” Janus, 138 S. Ct. at 2476 (cleaned up and citations omitted).
Lastly, Vermont’s policies are not narrowly tailored. By allowing exceptions to its policies,
Vermont has shown there are less restrictive alternatives that would still accomplish any asserted
interest. For example, if the VPA’s interest is ensuring all students can participate in events, it
could tailor scheduling to avoid religious conflicts.

II. Plaintiffs satisfy the remaining preliminary injunction factors.
Plaintiffs also satisfy the other preliminary injunction factors. “Because the deprivation of
First Amendment rights is an irreparable harm, in First Amendment cases the likelihood of
success on the merits is the dominant, if not the dispositive, factor.” Agudath Israel of Am. v.
Cuomo, 983 F.3d 620, 637 (2d Cir. 2020) (quotation marks and citation omitted). Plaintiffs have
met that burden, so “no further showing of irreparable injury is necessary.” Id. In addition,
absent an injunction, A.G., M.G., K.S., T.S., and other Mid Vermont Christian students will
continue to lose out on playing in state-sponsored athletics. This also means they are ineligible
for state-wide awards and are missing possible scholarship opportunities. See, e.g., C. Goodwin ¶
34. Moreover, the Slarve family will continue to be deprived of Town Tuitioning Funds. Finally,
the equities tip in Plaintiffs’ favor because “securing First Amendment rights is in the public
interest.” SAM Party of New York v. Kosinski, 987 F.3d 267, 278 (2d Cir. 2021).
CONCLUSION
For the reasons stated above, the Court should grant the motion and issue the requested
preliminary injunction.
15
Dated: December 19, 2023 Respectfully submitted,
s/ Michael J. Tierney
Michael J. Tierney
VT Bar No. 5275
Gretchen M. Wade
NH Bar No. 273726
WADLEIGH, STARR & PETERS, P.L.L.C.
95 Market Street
Manchester, NH 03101
Telephone: (603) 669-4140
Fax: (603) 669-6018
mtierney@wadleighlaw.com
gwade@wadleighlaw.com
s/ Ryan J. Tucker
Ryan J. Tucker*
AZ Bar No. 034382
David Cortman
AZ Bar No. 29490
Katherine Anderson*
AZ Bar No. 033104
15100 N. 90th Street
Scottsdale, AZ 85260
Telephone: (480) 444-0020
rtucker@adflegal.org
dcortman@adflegal.org
kanderson@adflegal.org
Jacob Reed*
VA Bar No. 97181
44180 Riverside Parkway
Lansdowne, VA 20176
Telephone: (571) 707-4655
jreed@ADFlegal.org
Attorneys for Plaintiffs

*Admitted pro hac vice
16
CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2023, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system and served it on the following via electronic mail and
mail:
Steven J. Zakrzewski, Esq.

Gordon Rees Scully Mansukhani
95 Glastonbury Blvd, Suite 206
Glastonbury, CT 06033
Tel. 860-494-7511
Email: szakrzewski@grsm.com
Counsel for Defendant Jay Nichols
Pietro Lynn, Esq.

76 St. Paul Street
Suite 400
Burlington, VT 05401
Tel. 802-860-1500
Email: PLynn@lynnlawvt.com
Counsel for Defendants Hartland School Board,
Waits River Valley School Board, Randall Fawel,
and Christine Bourne
Laura C. Rowntree, Esq.

Patrick Gaudet, Esq.
Kate Gallagher, Esq.
Vermont Attorney General’s Office
109 State Street
Tel. 802-595-3717
Email: laura.rowntree@vermont.gov
patrick.gaudet@vermont.gov
kate.gallagher@vermont.gov
Counsel for Defendants Heather Bouchey
and Jennifer Deck Samuelson
s/ Ryan J. Tucker
Ryan J. Tucker
17
Mid Vermont Christian School, et al.

v.
Heather Bouchey, in her official capacity as Interim Secretary
of the Vermont Agency of Education, et al.
Index for Motion for Preliminary Injunction Exhibits
Ex. No. Title
1 02-01-23 French Memorandum and BOE Board Minutes
2 03-09-23 Letter from MVCS to the Board of Education
3 03-21-23 Email from Samuelson to Fogg
4 07-06-23 Email from AOE to Fogg and April 2023

Recognized School Enrollment Notice
5 02-15-23 MVCS Athletics Letter to VPA
6 02-16-23 Email from VPA to Fogg
7 03-19-23 MVCS Letter to VPA
8 04-09-23 MVCS VPA Appeal Letter
9 05-08-23 VPA Appeal Decision
10 09-21-23 Email from Fogg to VPA
11 09-28-23 Email from Nichols to Fogg
12 Dr. Chad Carlson’s White Paper

EXHIBIT 1
LEADERSHIP | SUPPORT | OVERSIGHT

(802) 828-1130 | education.vermont.gov
MEMORANDUM
TO: Vermont State Board of Education
FROM: Daniel M. French, Ed.D.
SUBJECT: Recommendation for Conditional Approval of Mid Vermont Christian
School and United Christian Academy
DATE: February 1, 2023
I write to you to recommend conditional approval for two independent schools before
you: Mid Vermont Christian School and United Christian Academy.
Background
The Agency’s Independent School team recommended approval of Mid Vermont
Christian School and United Christian Academy because the review team found the
school to meet all requirements of Rule 2200. Since the completion of the Site Review
reports by that team, the schools were asked to complete the “Addendum for
Independent School Applications – 2022”, which includes 4 assurances that must be
signed by the Head of School to affirm that the school meets four new sections of Rule
2200 that went into effect in May 2022. The first attestation on the addendum is: “The
school complies with the Vermont Public Accommodations Act (Title 9 Vermont Statutes
Annotated, Chapter 139) in all aspects of the school’s admissions and operations.”
Mid Vermont Christian School and United Christian Academy submitted amended
addenda. The text of these addenda is as follows:
Mid Vermont Christian School

“The Mid Vermont Christian School is signing this form with the understanding
that it must be read consistent with existing law and the U.S. and Vermont
Constitutions. As a religious organization, the school has a statutory and
constitutional right to make decisions based on its religious beliefs, including
hiring and disciplining employees, associating with others, and in its admissions,
conduct and operations policies and procedures. By signing this form, the Mid
Vermont Christian School does not waive any such rights. To the extent Rule
2200’s requirements conflict with any of the school’s beliefs, including on
marriage and sexuality, the school has not included that language in its
handbook or online, nor can it affirm that particular aspect of the
Vermont Public Accommodations Act.”
Plaintiffs’ Mot. for Prelim. Inj. Ex. 1, Page 1 of 7

United Christian Academy

“By signing below, we hereby affirm that we are the authorized
officers/administrator of the applying independent school and we are signing this
Addendum with the understanding that it must be read consistent with existing
law, U.S. and State of Vermont Constitutions. As a Christian-based school we
have a statutory and constitutional right to make decisions based on our religious
beliefs, including those pertaining to marriage and sexuality. By signing below
United Christian Academy does not waive any such rights. We believe that we
have substantially complied with the requirements for approved independent
schools. If there are any concerns, please contact the undersigned.”
The Vermont Public Accommodations Act prohibits a school (if the school is a “place of
public accommodation”) from making admissions decisions that discriminate on the
basis of protected class status. Protected classes are: race, creed, color, national origin,
marital status, sex, sexual orientation, and gender identity. See 9 V.S.A. § 4502(a).
Though the schools’ statements differ, both decline to provide assurances that the
schools will comply with the Vermont Public Accommodations Act. In particular, both
decline to provide assurance that they will comply with the Act’s protection against
discrimination on the basis of sexual orientation. It is not clear if the schools are also
declining to provide assurance that they will comply with the Act’s protection against
marital-status discrimination. Mid Vermont Christian School’s statement indicates that
its handbook and website may not be consistent with the Act and suggests that it may
not follow the Act “in its admissions, conduct and operations policies and procedures.”
United Christian Academy’s statement is less clear as to the extent to which it intends to
comply with the Act.
Recommendation
It is my recommendation to the State Board Independent School Approval Committee
that you conditionally approve these schools, subject to the condition that, by the March
SBE meeting, the schools come into compliance with the requirements of State Board
of Education Rule 2226.6, which requires that an applicant make a “demonstration that
the school substantially complies with all statutory requirements for approved
independent schools, with documentation of . . . [a]n assurance, signed by the Head of
School, that the school complies with the Vermont Public Accommodations Act in all
aspects of the school's admissions and operations.” If either of the schools does not
provide such an assurance by the deadline, the State Board would make a finding that
the condition has not been met, and the school would not be approved. Based on
AOE’s research, this option is consistent with how other independent schools seeking
State Board approval have been treated, as conditional approval has been granted to
other independent schools that failed to meet a limited number of the requirements for
approval.
MEMO: Recommendation re: Mid Vt. Page 2 of 2

Christian School and United Christian
Academy (Revised: January 31, 2023)
1 National Life Drive, Davis 5, Montpelier, VT 05620-2501

(p) 802-828-1130 | (f) 802-828-6430 | education.vermont.gov
State Board of Education

Independent School Approval Review Committee
Draft Meeting Minutes
Meeting Place: Virtual Teams Meeting/Video/Teleconference

Call in #: 1-802-828-7667
Conference ID: 794 189 100#
Date: February 1, 2023
Present
State Board of Education (SBE) Subcommittee Members: Tom Lovett, Jenna O’Farrell,
Patrick Brown and Lyle Jepson
Agency of Education (AOE): Maureen Gaidys, Pat Pallas Gray, Deborah Ormsby, Cassandra
Ryan, Emily Simmons, Suzanne Sprague, Josh Souliere
Others: Donielle Albrecht, Jaime Kraybill, Megan Durling, Nathan Bradshaw, Vicky Fogg, Phil
Lee, Kelly Boelens
Call to Order/Roll Call/Amendments to the Agenda

Tom Lovett called the meeting to order at 1:01 p.m. and called roll. Tom moved to change the
order of the agenda to include: Approval of Minutes, Public to be Heard, East Burke School,
Champlain Valley Christian School, The Mill School, Executive Session, United Christian
Academy, Mid Vermont Christian School, Public to be Heard, Adjournment. Jenna O’Farrell
seconded the change to the order of the agenda, which passed unanimously.
Approve Draft Meeting Minutes from January 4, 2023 Meeting

Jenna O’Farrell made a motion to approve the minutes from the January 4th, 2023 meeting.
Patrick Brown seconded the motion, which passed unanimously.
Public to be Heard – No public chose to be heard.
Independent School Approvals

East Burke School, East Burke, Vermont
Josh Souliere reported on behalf of AOE staff. A second site review was conducted to
specifically address issues found in the first review relating to financial capacity. The second
visit pointed out that deficiencies had been addressed with technical assistance from the
Agency of Education. Based upon the report, the Secretary recommends a one-year renewal.
The school serves grades 8-12. Enrollment started at 12 for 2022-2023. There are two full-time
staff members. In addition, they have a visiting artist and counselor. A part-time administrative
assistant has very recently been hired.
Nathan Bradshaw, from East Burke School, pointed out that enrollment is currently 11. It is a
school of choice for students with a maximum enrollment of 18. Application for enrollment is in
narrative form. Staff discuss the application with the parent/guardian and student in an individual
way. They have an enrollment policy under consideration at an upcoming School Board
meeting. AOE staff were complementary of staff and the school.
The school has received a VEDA forgivable loan that has provided a financial bridge as the
state has emerged from COVID. Student enrollment has rebounded. Projected future tuition
revenues will sustain. A sliding scale wage agreement is in place with staff, which has resulted
in a sustainable financial structure.
A motion was made by Lyle Jepson and seconded by Patrick Brown to recommend to the full
State Board of Education renewal of general education for grades 8-12 for a period of two years
through June 2025 for the East Burke School, East Burke, Vermont. This is a conditional
approval with the understanding that the school will report their financial condition to the Agency
of Education no later than May 1, 2024. The report of financial condition will outline financial
projections for sustainability through June 2025. The motion passed unanimously.
Champlain Valley Christian School, Vergennes, Vermont
Josh Souliere explained that the school has met the standards required for a K-8 school and
staff are recommending a five-year renewal. The addendum of assurances has been signed.
There were 47 students enrolled at the time of the visit. They anticipate more than 50 in 2023-
2024. They do not take any public tuition funding. All students are private pay. The school
provides differentiated instruction. They do not have a special educator. Kelly Boelens provides
additional support. SLP services are provided from LEAs for several students. There are five
full-time and four part-time staff members. All are qualified in their area of instruction.
A motion was made by Lyle Jepson and seconded by Jenna O’Farrell to recommend to the full
State Board of Education renewal of general education for ages K-8 for a period of five years for
Champlain Valley Christian School, Vergennes, Vermont. The motion passed unanimously.
The Mill School, Winooski, Vermont

Josh Souliere indicated that the Agency recommends a two-year renewal based upon findings
associated with compulsory attendance requirements and maintenance of a register of daily
attendance of its enrolled students.
Donielle Albrecht from the Mill School responded to questioning concerning attendance and
daily scheduling. Morning check-in was discussed. Several students travel from a distance to
the school. An adult always checks in the students. The process has been updated recently with
color coding indicating reasons for absence, tardiness, etc. She feels confident that they have
remediated the issue of student monitoring of attendance.
State Board of Education Page 2 of 5

SBE IS School Approval Review Committee
February 1, 2023 – Draft Minutes

Ready or Not Ready is how they determine availability to learn. There are multiple rooms where
students can be “not available”. Students rely upon transportation set up by the school. Each
student has a customized plan of attendance. There is a new Director Position that provides
administrative support that was not in place before.
A motion was made by Lyle Jepson and seconded by Patrick Brown to recommend to the full
State Board of Education that the Mill School, Winooski, Vermont receive both a renewal of
current general education and special education for three years through June of 2026. The
motion passed unanimously.
Motion to enter Executive Session

Tom Lovett moved that the Board finds that the premature general public knowledge of
confidential attorney-client communications made for the purpose of providing professional legal
services to the body would clearly place the Board at a substantial disadvantage. This motion
was seconded by Lyle Jepson and passed unanimously.
At 2:03 p.m. Tom Lovett moved that the Board go into executive session to receive confidential
attorney-client communications made for the purpose of providing professional legal services to
the body pursuant to 1 V.S.A. Section 313(a)(1)(F). Jenna O’Farrell seconded the motion, which
passed unanimously.
Tom Lovett made motion to exit executive session at 2:32 p.m. The motion was seconded by
Lyle Jepson and passed unanimously. The Committee reconvened.
Independent School Approvals

United Christian Academy, Newport, Vermont
Josh Souliere outlined the visit to United Christian Academy. The school is K–12 and provides
differentiated instruction. The school substantially complies with the expectations of the rules.
The AOE staff recommends a two-year approval.
Emily Simmons, AOE staff attorney, outlined a change in the Secretary’s recommendation,
which includes the condition that the school sign and submit the attestation that the school is in
compliance with the Public Accommodations Act. The Secretary recommends that the school be
given until March 15, 2023 to comply with this requirement in order to receive Initial Approval.
In response to questions, United Christian Academy staff explained that all students are private
pay. Active shooter and shelter in place policies are in place. They are working on
operationalizing these procedures based upon state recommendations. Currently there are 64
students There are 21 staff, of which there are 11 full-time and 10 part-time.
A motion was made by Tom Lovett and seconded by Patrick Brown to recommend to the full
State Board of Education that Initial Approval of general education for grades K-12 be approved
for a period of five years through 2027 for the United Christian Academy, Newport, Vermont.
The motion passed unanimously.
Tom Lovett moved and Lyle Jepson seconded the Secretary’s recommendation that United
Christian Academy be conditionally approved for an initial approval period of two years, subject
to the condition that, by the March SBE meeting, the school comes into compliance with the

requirements of State Board of Education Rule 2226.6, which requires that an applicant make a
“demonstration that the school substantially complies with all statutory requirements for
approved independent schools, with documentation of . . . [a]n assurance, signed by the Head
of School, that the school complies with the Vermont Public Accommodations Act in all aspects
of the school's admissions and operations.” If the school does not provide such an assurance by
the deadline, the State Board would make a finding that the condition has not been met, and the
school would not be approved. Based on AOE’s research, this option is consistent with how
other independent schools seeking State Board approval have been treated, as conditional
approval has been granted to other independent schools that failed to meet a limited number of
the requirements for approval. The motion passed unanimously.
A United Christian Academy staff member asked for clarification of “compliance with” the Public
Accommodations Act. Emily Simmons read from the Secretary’s recommendation. The memo
was put in the chat.
Mid Vermont Christian School, White River Jct., Vermont
Josh Souliere outlined that the school meets the requirements for grades K-12. The Agency
recommends a five-year renewal. The school is a member of the Association of Christian
Schools International. There are 114 students Pre-K to 12. There are 14 full-time and 11 part-
time instructors.
Tom Lovett indicated that this would also be conditional on the same signed assurance as
outlined in the Secretary’s memo.
Discussion took place regarding serving special needs students. Local LEAs continue to test
students but do not have staff to support students. Therefore, the school has hired staff in
collaboration with the LEA. Out of State students attend from neighboring New Hampshire. New
Hampshire students are all private pay.
Tom Lovett moved and Lyle Jepson seconded the Secretary’s recommendation that Mid
Vermont Christian School be conditionally approved for a period of five years through 2027,
subject to the condition that, by the March SBE meeting, the school comes into compliance with
the requirements of State Board of Education Rule 2226.6, which requires that an applicant
make a “demonstration that the school substantially complies with all statutory requirements for
approved independent schools, with documentation of . . . [a]n assurance, signed by the Head
of School, that the school complies with the Vermont Public Accommodations Act in all aspects
of the school's admissions and operations.” If the school does not provide such an assurance by
the deadline, the State Board would make a finding that the condition has not been met, and the
school would not be approved. Based on AOE’s research, this option is consistent with how
other independent schools seeking State Board approval have been treated, as conditional
approval has been granted to other independent schools that failed to meet a limited number of
the requirements for approval. The motion passed unanimously.
It was recommended that the school follow up with staff at the Agency of Education with
questions.


Public to be Heard
Kelly Bushey, from Connected Circles, indicted that a student has been disenrolled from his
public school because he cannot be successful there. She believes the approval process and
timeline has pushed the student out. Ms. Bushey indicated that he is now a student drop out.
Prior to the process, the student was enrolled 80% of the time. As of February 1st, she has not
heard anything from the Agency of Education on her application for approval. She will submit
written testimony to the AOE. An outline of AOE work indicates that Connected Circles
application is still being reviewed by Agency staff and has not been moved to the Secretary of
Education.
Adjourn
Jenna O’Farrell moved to adjourn the meeting. Patrick Brown seconded the motion. The
meeting adjourned at 3:15 p.m.
Minutes prepared by Lyle Jepson.


EXHIBIT 2
MID VERMONT CHRISTIAN SCHOOL

MAILING ADDRESS: STREET ADDRESS:
399 West Gilson Ave. 399 West Gilson Ave. at Route 4
White River Junction, VT 05001-9527 Quechee, VT 05059
March 9, 2023
Dear State of Vermont Board of Education,
We are in receipt of the February 1, 2023, memorandum from Secretary Daniel French
to the Vermont State Board of Education. In that memorandum, Secretary French
recommends that our school be conditionally approved, subject to the requirement that
by the March SBE meeting we “substantially compl[y] with all statutory requirements for
approved independent schools, with documentation of . . . [a]n assurance, signed by the
Head of School, that the school complies with the Vermont Public Accommodations Act
in all aspects of the school’s admissions and operations.” Please allow this letter to
serve as further information in evaluating his recommendation.
First, Mid Vermont Christian School should not be required to sign an assurance
promising that it complies with the Vermont Public Accommodations Act when the Act
does not even apply to the school. Mid-Vermont Christian is private and selective in
nature and therefore, not a “place of public accommodation.” For example, in the
context of admissions, it is a prerequisite that at least one parent or guardian of a
prospective student at MVCS be a professing Christian and regularly attend a Bible-
believing church whose doctrinal positions agree with that of the school as expressed in
our Statement of Faith. This requirement has been in place since Vermont first
recognized us as an approved independent school. Further, our facilities are not open to
everyone. They are instead used by our staff, students, and those invited onto our
campus.
Putting aside the applicability of the Public Accommodations Act itself, there are other
reasons why our school should be renewed as an approved independent school. As we
indicated in our signed assurance, we are a religious organization that operates
according to our religious beliefs, including those on marriage and sexuality. We believe
that God wonderfully and immutably created mankind in two distinct sexes, male and
female, and that gender is determined by biological sex. These two distinct,
complementary sexes together reflect the image and nature of God. While students who
are questioning their sexuality and gender are welcome to attend MVCS, the school’s
internal rules, policies, and student expectations are based on its religious beliefs,
including its beliefs about sexuality and gender. This includes the school’s policies on
bathroom and locker room usage, pronoun usage, dress codes, and participation in
athletics, meaning their application to a particular student is based on the student’s
biological sex.
VICKY FOGG, Head of School

TELEPHONE: (802) 295-6800 / FAX: (802) 295-3748 / WEB SITE: www mvcs.info / E-MAIL: mvcs@mvcs.info
In sum, the reason we included language on the assurance form is because we wanted
to make sure there was clarity of our position. Our view is that the Public
Accommodations Act does not apply to our private school. But even if it did, we are a
religious organization with a constitutionally protected right to operate consistently with
the religious principles for which we were established and maintained. We once again
request the Board renew our application as an approved independent school.
Sincerely,
Vicky Fogg
Head of School

EXHIBIT 3
From: Samuelson, Jennifer <Jennifer.Samuelson@vermont.gov>

Date: Tue, Mar 21, 2023 at 3:49 PM
Subject: Re: MVCS response to State School Board
To: headofschool <headofschool@mvcs.info>
Cc: French, Daniel <Daniel.French@vermont.gov>
Hello, Ms. Fogg. This email is to confirm receipt of your letter dated March 9, 2023. This matter came before
the State Board of Education at its February 15, 2023, meeting. The Board is not taking further action at this
time.
Kind regards,
Jennifer Deck Samuelson

Chair, Vermont State Board of Education
1
EXHIBIT 4
From: Pallas Gray, Pat <Pat.PallasGray@vermont.gov>

Date: Thu, Jul 6, 2023 at 9:51 AM
Subject: Recognized School Enrollment Notice
To: Vicky Fogg Head of School <headofschool@mvcs.info>
Hello Vicky,
Attached you will find the forms to seek recognized school status for the 2023‐2024 school year. Please complete the
form and return it to me ASAP.
If you have any questions, please let me know.
Take care
Pat
Pat Pallas Gray
Independent School Consultant
Agency of Education
1 National Life Drive, Davis 5
(802) 828‐3991
1
1 National Life Drive, Davis 5, Montpelier, VT 05620-2501

(p) 802-828-1130 | (f) 802-828-6430 | education.vermont.gov
MEMORANDUM
TO: Recognized Independent School Contacts
FROM: Pat Pallas Gray, Independent School Consultant
SUBJECT: Recognized School Enrollment Notice for 2023-2024
DATE: April 24, 2023
Enclosed is the information required annually to continue your school’s recognized

independent school status, pursuant to 16 V.S.A. §166(c). This information must be received
by the Agency of Education (AOE) prior to the public schools in your area opening for the
2023-2024 school year. Please submit the completed forms no later than August 1, 2023. This
will give the AOE an opportunity to respond to your notice in a timely manner.
These forms are also available on AOE’s website on the independent school page at
https://education.vermont.gov/documents/edu-recognized-independent-school-enrollment-
notice in Microsoft Word format. We prefer to receive the completed forms electronically; and
they should be sent to Pat Pallas Gray at pat.pallasgray@vermont.gov If you are unable to
submit the forms electronically, they can be mailed to the following address:
Pat Pallas Gray

Independent School Consultant
Vermont Agency of Education
1 National Life Drive, Davis 5
Contact Information:
If you have questions about this document or would like additional information, please contact:
Pat Pallas Gray, School Finance Team,Plaintiffs’
at pat.pallasgray@vermont.gov or (802)
Mot. for Prelim. Inj. Ex. 828-3991
4, Page 2 of 5



EXHIBIT 5

February 16, 2023
Dear Vermont Principals’ Association,
It has come to our attention that there is a biological male playing on the girls’ basketball varsity team
at The Long Trail School. We are requesting that if we end up being their opponent in the State
Tournament, that the biological male would not be allowed to play.
In general, biological males have a clear advantage over females in the physical realm, namely size,
speed, quickness, strength, muscle mass, bone density, lung capacity, etc. Besides these obvious
advantages that this affords the Long Trail Girls’ team, our girls are extremely uncomfortable playing
a contact sport with a member of the opposite sex both for reasons of safety and the overall
uncomfortableness of the proximity and contact necessary to play this sport to its fullest. We would
be asking our girls to box out a much larger male. Setting screens, boxing out, jumping for rebounds
necessarily create contact that is both unsafe and more physically uncomfortable at a different level
than when we are playing members of the same sex.
Fairness and the safety of the girls are our concerns. Allowing a biological male to participate in
women’s sports sets a bad precedent for the future of women’s sports in general. Title IX was
instituted in order to level the playing field and to give women the opportunity at every level to
participate in sports with their biological peers. Allowing biological males to compete on a girls’ team
is a backward step in this process.
We would like the VPA to protect women’s sports. We are confident that there are other schools that
have similar concerns. Can there be a discussion about this that includes coaches?
We are grateful for your willingness to examine this issue. Please let us know your response.
Thanks,
Vicky Fogg Erva Barnes

Head of School Athletic Director

EXHIBIT 6
From: Lauren Thomas <lthomas@vpaonline.org>

Date: Thu, Feb 16, 2023 at 1:29 PM
Subject: Re: request from MVCS
To: Vicky Fogg <headofschool@mvcs.info>
Cc: admissions <mvcsadmissions@mvcs.info>, Mike McRaith <mmcraith@vpaonline.org>, Jay Nichols
<jnichols@vpaonline.org>
Thank you for your email. I defer you to our policy handbook on gender identity and participation: Link to policies
The policy guide is what governs schools and their participation in VPA‐sponsored athletics. In denying the rights of a
student to participate as they identify we would be in violation of Vermont’s Public Accommodations Act (9 V.S.A.
4502) and going against the AOE's Best Practices For Schools For Transgender And Gender Nonconforming
Students. We do not intend to violate our policy by honoring your request.
1
EXHIBIT 7

March 19, 2023
Dear VPA and Activities Standards Committee:
We are in receipt of VPA’s email dated March 13, 2023, from the Executive Council to the VPA
Membership. Your email discusses “upholding VPA Policies,” but we have multiple concerns
regarding this process, the Executive Council’s determination, and representations being made by
VPA to media outlets.
As per the letter, VPA expelled MVCS based on the statement made to Valley News on Feb
22, 2023: “We withdrew from the tournament because we believe playing against an opponent with a
biological male jeopardizes the fairness of the game and the safety of our players. Allowing biological
males to participate in women’s sports sets a bad precedent for the future of women’s sports in
general.”
As an initial matter, neither the Executive Director nor a designee gave Mid Vermont Christian
School (MVCS) written notice of any alleged violation. Under Section 12, the written notice was to
include the charges made, a recommended penalty, and a copy of the preliminary investigation report
if a report was prepared. No notice was provided to MVCS.
After the written notice is received, a school may accept the notice and recommended penalty
or may file an appeal with the Activities Standards Committee. Again, no written notice has been
received by MVCS. Instead, VPA issued a press release saying, “there is an immediate determination
of ineligibility” and then sent MVCS a letter saying we cannot participate in any VPA events going
forward. Your letter also said prorated dues will be returned to us via check, with no mention of further
discussion or an appeals process. In fact, the Vermont Digger last Monday cited Mr. Nichols as
saying there is no appeals process, even though VPA Policies say otherwise. Regardless, to the
extent that VPA considers the letter dated March 13, 2023, from VPA to MVCS to be a “Notice of
Probable violation” (which is undefined in the VPA Athletic Policies manual and MVCS disputes as
proper written notice), please consider this MVCS’s written appeal of VPA’s letter of ineligibility.
On February 16, 2023, MVCS told the VPA in writing (before the playoff game) that it had
concerns over the prospect of its women’s varsity basketball team playing against a biological male. I
have included another copy of that letter with this notice, but for ease of reference here is the
substance of that letter:
In general, biological males have a clear advantage over females in the physical realm,
namely size, speed, quickness, strength, muscle mass, bone density, lung capacity, etc.

VPA and Activities Standards Committee March 19, 2023, Pg2
Besides these obvious advantages that this affords the Long Trail Girls’ team, our girls
are extremely uncomfortable playing a contact sport with a member of the opposite sex
both for reasons of safety and the overall uncomfortableness of the proximity and
contact necessary to play this sport to its fullest. We would be asking our girls to box out
a much larger male. Setting screens, boxing out, jumping for rebounds necessarily
create contact that is both unsafe and more physically uncomfortable at a different level
than when we are playing members of the same sex.
Fairness and the safety of the girls are our concerns. Allowing a biological male to
participate in women’s sports sets a bad precedent for the future of women’s sports in
general. Title IX was instituted in order to level the playing field and to give women the
opportunity at every level to participate in sports with their biological peers. Allowing
biological males to compete on a girls’ team is a backward step in this process.
We would like the VPA to protect women’s sports. We are confident that there are other
schools that have similar concerns. Can there be a discussion about this that includes
coaches?
We are grateful for your willingness to examine this issue. Please let us know your
response.
In the Procedures section of the Policy on Gender Identity the VPA has stated that, “All appeals
concerning a school’s determination as to the eligibility of a gender non-conforming student to
participate in interscholastic sports will go directly to the VPA for consideration/action.” We did this,
but only received a short email dismissing our request and pointing to their policy handbook. There
was no attempt to find a solution or even to acknowledge the legitimacy of our concerns.
Eleven days later, VPA notified the press and MVCS that they were canceling our membership.
The VPA says it “believes that all individuals should be treated with dignity, fairness, and
respect.” But how are biological girls respected when they are forced to play sports against biological
males? How is that fair? As noted in our letter, MVCS has serious concerns over the safety of its
female athletes. In fact, a report from Dr. Gregory Brown, a professor of exercise science at the
University of Nebraska Kearney, demonstrates this concern and the multiple physical advantages
males enjoy in athletic competition. A copy of that report is attached with this correspondence.
And further, MVCS’s position is rooted in its religious beliefs. MVCS believes sex is God-given
and immutable and that God created each of us either male or female. We have a women’s
basketball team that plays in a league reserved for females. By forcing our young ladies to compete
against biological males, the VPA is forcing MVCS to affirm something that violates our religious
beliefs—i.e., that the males who play in the girls’ league are females. MVCS seeks to protect the
health and wellbeing of its students. Knowingly putting them in an unsafe situation violates our
beliefs.
In sum, rather than place our young MVCS women in harm’s way and sacrifice our religious
beliefs, we chose to forfeit the basketball game. Ending the season on that note—in the playoffs no
less—is “punishment” enough for these students and our school.
VICKY FOGG, MVCS Head of School

VPA and Activities Standards Committee March 19, 2023, Pg3
Finally, the VPA’s decision has a huge impact on the wellbeing of our students and school.
The VPA’s decision prevents us from playing official games, meets or matches with virtually anyone
in the State of Vermont.
We respectfully ask the VPA’s determination of ineligibility be lifted on all VPA sanctioned
activities and tournaments going forward. Canceling our membership is not a solution and does
nothing to deal with the very real issue of safety and fairness facing women's sports in our beloved
state. We urge the VPA to reconsider its policies, and balance the rights of every athlete in the state.
Regards,
Vicky Fogg
Head of School
VICKY FOGG, MVCS Head of School

EXHIBIT 8

April 9, 2023
Dear VPA and Activities Standards Committee:
We have received VPA’s Notice of Probable Violation. For the reasons discussed below and
materials previously submitted, Mid Vermont Christian School (MVCS) does not accept the
recommended penalty of expulsion and hereby submits this (second) written notice of appeal.
On February 16, 2023, MVCS told the VPA in writing (before the playoff game) that it had
concerns over the prospect of its girl’s varsity basketball team playing against a biological male.
Multiple copies have been provided, but for ease of reference here is the substance of that letter:
In general, biological males have a clear advantage over females in the physical
realm, namely size, speed, quickness, strength, muscle mass, bone density, lung
capacity, etc. Besides these obvious advantages that this affords the Long Trail Girls’
team, our girls are extremely uncomfortable playing a contact sport with a member
of the opposite sex both for reasons of safety and the overall uncomfortableness of the
proximity and contact necessary to play this sport to its fullest. We would be asking
our girls to box out a much larger male. Setting screens, boxing out, jumping for
rebounds necessarily create contact that is both unsafe and more physically
uncomfortable at a different level than when we are playing members of the same
sex.
Fairness and the safety of the girls are our concerns. Allowing a biological male to
participate in women’s sports sets a bad precedent for the future of women’s sports
in general. Title IX was instituted in order to level the playing field and to give women
the opportunity at every level to participate in sports with their biological peers.
Allowing biological males to compete on a girls’ team is a backward step in this
process.
We would like the VPA to protect women’s sports. We are confident that there are
other schools that have similar concerns. Can there be a discussion about this that
includes coaches?
We are grateful for your willingness to examine this issue. Please let us know your
response.
Based on VPA’s own policies, the previously provided report of Dr. Gregory Brown (who analyzed
the multiple physical advantages males enjoy in athletic competition and whose report is also

Page 2
attached to this letter), and recent decisions from international sporting bodies such as World
Athletics, MVCS honestly expected a positive response from the VPA.
For example, the VPA’s own policies recognize the inherent differences between male and
female athletes. Section 16.11 states:
Interscholastic athletics involving mixed (boys/girls) competition is prohibited except

in those instances where the member school does not offer equivalent (same)
activities for girls. In these situations, girls shall be eligible to try out in any activity,
and upon becoming a member of the team, will be eligible for state competition.
Therefore, boys shall not try out for traditional girls' sports and be eligible for state
competition. For purposes of this policy, the following activities are
identified as girl’s sports: field hockey, softball, girls soccer, girls basketball,
girls golf, girls gymnastics, girls hockey, girls lacrosse, girls alpine and nordic skiing,
girls tennis, girls track and field, girls snowboarding, girls volleyball and girls
ultimate. This policy recognizes traditional boys-dominated sports and the
need to protect opportunities for girl athletes.
And a simple review of news stories involving the Long Trail Girls’ basketball team
underscore this concern.1 Being several inches larger than any female on the court, the Long Trail’s
coach gave this individual the nickname “Not in My House.”2 Video of this individual playing
likewise underscores the point.3
In addition to stating that the VPA “recognizes the value of participation in interscholastic
sports for all student-athletes,” the VPA’s “Commitment to Racial, Gender-Fair, and Disability
Awareness” states that the VPA is in part “committed to creating an environment in our activities
and programs that promotes respect for and appreciation of . . . religious . . . differences . . . .” And
here, MVCS’s decision to forfeit the basketball game was rooted in its religious beliefs. MVCS
believes sex is God-given and immutable and that God created each of us either male or female.
Rejection of one’s biological sex is a rejection of the image of God within that person.
We have a girls’ basketball team that plays in a league reserved for females. By attempting
to force young ladies to compete against biological males, the VPA is forcing MVCS to affirm
something that violates our religious beliefs—i.e., that the males who play in the girls’ league are
females. MVCS simply cannot sacrifice its religious beliefs, nor can it fail to protect the health and
wellbeing of its students. Knowingly putting them in an unsafe situation violates our beliefs.
What’s more, the VPA is asking MVCS to change our own internal policies to adhere to and reflect
its own position on issues of sexuality. The VPA cannot force MVCS and its students to engage in
speech and expression they do not wish to convey in order to participate equally in the VPA and
its events.
1
https://www.manchesterjournal.com/sports/long-trail-girls-hoops-move-to-8-5-on-the-year/article 913cd6e0-a1d0-11ed-b0ec-
e3d23137e279.html and https://vermontdailychronicle.com/david-vs-goliath-dressed-as-a-girl/
2
https://www.benningtonbanner.com/sports/long-trail-girls-hoops-move-to-8-5-on-the-year/article 88d5828e-a1cd-11ed-8f7a-
530acf8df975.html;
3
https://www.youtube.com/clip/UgkxNsG3hmoifW32FLoPJjmRN16Sp7EK1TvJ

Page 3
Instead of adhering to its own policies or respecting our religious beliefs, the VPA issued a
press release to the public following our February 16, 2023, letter saying, “there is an immediate
determination of ineligibility.” The VPA then sent MVCS a letter saying we cannot participate in
any VPA events going forward. The initial VPA letter shared via press release also said prorated
dues would be returned to us via check, with no mention of an appeals process. In fact, the Vermont
Digger cited Mr. Nichols as saying there was no appeals process at all.
While we are thankful the Activities Committee eventually recognized the Executive
Committee’s disregard of VPA’s own policies, the VPA’s decision to exclude us has had a huge and
ongoing negative impact on our school and its students. The VPA controls the state’s school athletic
activities, and its decision not only expels us but also prevents other member schools from playing
with us, including students participating in their own home district school activities. In fact, we
have students right now who cannot participate in spring sports due to the VPA’s actions and our
fall sports are likewise in jeopardy. This impacts the well-being of our students and even other
schools as there is no viable alternative option in the State of Vermont for our school to participate
in any sport.
In sum, based on VPA’s own policies (or its refusal to follow them) a final determination on
MVCS’s eligibility (or reinstatement) should have been made weeks ago. Instead, MVCS is now
almost two months into this ordeal with no final determination in sight. Thus, rather than delay
this further with a request for a hearing, MVCS again respectfully requests that the Committee
issue a decision as soon as possible based on the materials presented to date.
We ask the VPA’s recommendation of expulsion for MVCS be rejected, and MVCS’s
suspension be lifted on all VPA sanctioned activities and tournaments going forward.
Regards,
Vicky Fogg
Head of School

EXHIBIT 9





EXHIBIT 10
From: Vicky Fogg <headofschool@mvcs.info>

Date: Thu, Sep 21, 2023 at 10:38 AM
Subject: VPA membership
To: <hgerrish@vpaonline.org>, Vicky Fogg <headofschool@mvcs.info>
Hi,
I am interested in reapplying for school membership in the VPA. Can you please send me any required forms?
Thanks,
Vicky Fogg
‐‐
Vicky Fogg
Head of School
"May the God who gives endurance and encouragement give you the same attitude of mind toward each other that Christ Jesus had, so that with one mind and one voice you
may glorify the God and Father of our Lord Jesus Christ." Romans 15:5‐6
Tel: 802-295-6800 Fax: 802-295-3748

Headofschool@mvcs.info | www.mvcs.info
399 West Gilson Avenue
White River Jct., VT 05001
1
EXHIBIT 11
From: Jay Nichols <jnichols@vpaonline.org>

Date: Thursday, September 28, 2023
Subject: Your Request for School Membership
To: Vicky Fogg <headofschool@mvcs.info>
Dear Ms. Fogg,
Thank you for contacting my office and expressing interest in resuming VPA membership for your school. The VPA
Activities Standards Committee decision on the appeal from the expulsion of your school is a binding decision. Your
school elected to not pursue an appeal, so the decision cannot now be challenged. I am attaching a copy of the decision
to this email.
In part, the ASC decided:
“Had the [Mid‐Vermont Christian] School made a sincere commitment to abide by VPA Policies and Vermont law, and
that its teams would compete with other schools who include transgender athletes, we would be open to penalties
short of expulsion. If the School changes course in the future, that change would have to be considered in any new
application for membership.”
Please address in writing how the School intends to assure that it will meet these obligations if the School again
becomes a member of the VPA.
Very truly yours,
Jay
‐‐
Jay Nichols
Executive Director
Vermont Principals' Association
The Vermont Principals' Association supports school leaders to improve the equity and quality of educational
opportunities for all students
1
EXHIBIT 12
i
White Paper
Concerning Injury Risks Associated with Transgender

Participation in Female Athletics
DR. CHAD THOMAS CARLSON, M.D., FACSM
December 17, 2023
ii
iii
TABLE OF CONTENTS
Table of Contents .......................................................................................................... iv

Introduction ................................................................................................................... 1
Credentials ..................................................................................................................... 4
I. OVERVIEW .......................................................................................................... 7
II. A BRIEF HISTORY OF THE RATIONALE FOR SEPARATION OF SPORT
BY SEX ....................................................................................................................... 9
III. UNDERSTANDING THE CAUSES OF SPORTS INJURIES ..................... 12
A. The epidemiological model of injury ......................................................... 12
B. The biomechanical model of injury ........................................................... 16
IV. THE PHYSICS OF SPORTS INJURY........................................................... 18
V. GENDER DIFFERENCES RELEVANT TO INJURY ..................................... 22
A. Height and weight ..................................................................................... 23
B. Bone and connective tissue strength ........................................................ 24
C. Speed .......................................................................................................... 24
D. Strength/Power .......................................................................................... 25
E. Throwing and kicking speed ..................................................................... 27
VI. ENHANCED FEMALE VULNERABILITY TO CERTAIN INJURIES ....... 30
A. Concussions ................................................................................................ 31
B. Anterior Cruciate Ligament injuries ........................................................ 37
VII. TESTOSTERONE SUPPRESSION WILL NOT PREVENT THE HARM TO
FEMALE SAFETY IN ATHLETICS ....................................................................... 41
A. Size and weight .......................................................................................... 46
B. Bone density ........................................... Error! Bookmark not defined.
C. Strength ..................................................................................................... 48
D. Speed .......................................................................................................... 51
Conclusion .................................................................................................................... 52
Bibliography ................................................................................................................. 56
iv
INTRODUCTION
Up to the present, the great majority of news, debate, and even scholarship
about transgender participation in female athletics has focused on sports such as
swimming or track and field, and the debate has largely concerned questions of
fairness and inclusion. However, the transgender eligibility policies of many high
school athletic associations in the United States apply with equal force to all sports,
including sports in which players frequently collide with each other, or can be
forcefully struck by balls, or equipment such as hockey or lacrosse sticks. And in fact,
biologically male transgender athletes have competed in a wide range of high school,
collegiate, and professional girls’ or women’s sports, including, at least, basketball,1
soccer, 2 volleyball, 3 softball, 4 lacrosse, 5 and even women’s tackle football. 6
The science of sex-specific differences in physiology, intersecting with the
physics of sports injury, leaves little doubt that participation by biological males in
1https://www.espn.com/espnw/athletes-life/story/_/id/10170842/espnw-gabrielle-ludwig-52-year-old-
transgender-women-college-basketball-player-enjoying-best-year-life (accessed 2/17/22)

2https://www.unionleader.com/news/education/nh-bill-limits-women-s-sports-to-girls-born-
female/article_d1998ea1-a1b9-5ba4-a48d-51a2aa01b910.html (accessed 5/24/22);

https://www.outsports.com/2020/1/17/21069390/womens-soccer-mara-gomez-transgender-player-
argentina-primera-division-villa-san-marcos (accessed 6/20/21)
3https://news.ucsc.edu/2016/09/challenging-assumptions.html(accessed 6/20/21);
https://www.outsports.com/2017/3/20/14987924/trans-athlete-volleyball-tia-thompson (accessed
6/20/21)
4https://www.foxnews.com/us/californias-transgender-law-allows-male-high-schooler-to-make-girls-
softball-team (accessed 6/20/21)

5https://savewomenssports.com/f/emilys-story?blogcategory=Our+Stories (accessed 6/20/21)
6https://www.outsports.com/2017/12/13/16748322/britney-stinson-trans-football-baseball (accessed
6/20/21); https://www.mprnews.org/story/2018/12/22/transgender-football-player-prevails-in-lawsuit
(accessed 6/20/21)
1
these types of girls’ or women’s sports, based on gender identity, creates significant
additional risk of injury for the biologically female participants competing alongside
these transgender athletes.
In 2020, after an extensive review of the scientific literature, consultation with
experts, and modeling of expected injuries, World Rugby published revised rules
governing transgender participation, along with a detailed explanation of how the
new policy was supported by current evidence. World Rugby concluded that “there is
currently no basis with which safety and fairness can be assured to biologically female
rugby players should they encounter contact situations with players whose biological
male advantages persist to a large degree,” and that after puberty, “the lowering of
testosterone removes only a small proportion of the documented biological
differences.” Hence, World Rugby concluded that biological men should not compete
in women’s rugby. (World Rugby Transgender Women Guidelines 2020.) World Rugby
has been criticized by some for its new guidelines, but those criticisms have often
avoided discussions of medical science entirely, or have asserted that modeling
scenarios can overstate true risk. What cannot be denied, however, is that World
Rugby’s approach is evidence-based, and rooted in concern for athlete safety. As a
medical doctor who has spent my career in sports medicine, it is my opinion that
World Rugby’s assessment of the evidence is scientifically sound, and that injury
modeling meaningfully predicts that biologically male transgender athletes do
constitute a safety risk for the biologically female athlete in women’s sports.
In a similar vein, in 2021, the UK Sports Councils’ Equality Group released
new guidance for transgender inclusion in organized sports. This guidance was
2
formulated after extensive conversations with stakeholders, a review of scientific
findings related to transgender athletes in sport through early 2021, and an
assessment of the use by some sport national governing bodies of case-by-case
assessment to determine eligibility. Noteworthy within these stakeholder
consultations was a lack of consensus on any workable solution, as well as concerns
related to athlete safety and “adherence to rules which give sport validity.” The
Literature Review accompanying the guidance document further noted that “[t]here
are significant differences between the sexes which render direct competition between
males and females . . . unsafe in sports which allow physical contact and collisions.”
(UK Sports Councils’ Equality Group Literature Review 2021 at 1.) Their review of
the science “made clear that there are retained differences in strength, stamina and
physique between the average woman compared with the average transgender
woman….with or without testosterone suppression.” (UK Sports Councils’ Equality
Group Guidance at 3.) This was also reflected in their ten guiding principles, stating
that physical differences between the sexes will “impact safety parameters in sports
which are combat, collision or contact in nature.” (UK Sports Councils’ Equality
Group Guidance 2021 at 7.) Ultimately, UK Sport concluded that the full inclusion of
transgender athletes in women’s sports “cannot be reconciled within the current
structure of sport,” stating that “the inclusion of transgender people into female sport
cannot be balanced regarding transgender inclusion, fairness and safety in gender-
affected sport where there is meaningful competition . . . due to retained differences
in strength, stamina and physique between the average woman compared with the
average transgender woman…, with or without testosterone suppression.” (UK

3
Sports Councils’ Equality Group Guidance 2021 at 6.) Finally, UK Sport affirmed the
use of sex categorization in sport, along with age and disability, as important for the
maintenance of safety and fairness. (UK Sports Councils’ Equality Group Guidance
2021 at 7–8.)
Unfortunately, apart from World Rugby’s careful review and the recent release
of UK Sports Councils’ guidance, the public discourse is lacking any careful
consideration of the question of safety. As a physician who has spent my career caring
for athletes, I find this silence about safety both surprising and concerning. It is my
hope to equip and motivate sports leagues and policy makers to give adequate
attention to the issue of safety for female athletes when transgender policies are being
considered. I first explain the nature and causes of common sports injuries. I then
review physiological differences between male and female bodies that affect the risk
and severity of injuries to females when biological males compete in the female
category, and I explain why testosterone suppression does not eliminate these
heightened risks to females. Finally, I explain certain conclusions about those risks.
CREDENTIALS
1. I am a medical doctor practicing Sports Medicine, maintaining an active
clinical practice at Stadia Sports Medicine in West Des Moines, Iowa. I received my
M.D. from the University of Nebraska College of Medicine in 1994 and completed a
residency in family medicine at the University of Michigan in 1997.
2. Following my time in Ann Arbor, I matched to a fellowship in Sports
Medicine at Ball Memorial Hospital in Muncie, Indiana, training from 1997 to 1999,
with clinical time split between Central Indiana Orthopedics, the Ball State Human
4
Performance Laboratory, and the Ball State University training room. I received my
board certification in Sports Medicine in 1999, which I continue to hold. Since
residency training, my practice has focused on Sports Medicine—the treatment and
prevention of injuries related to sport and physical activity.
3. Since 1997, I have served in several clinical practices and settings as a
treating physician, including time as team physician for both the University of Illinois
and Ball State University, where I provided care to athletes in several sports,
including football, ice hockey, basketball, field hockey, softball, gymnastics, soccer,
and volleyball. In the course of my career, I have provided coverage for NCAA Power
Five Conference championships and NCAA National Championship events in
basketball, field hockey and gymnastics, among other sports, as well as provided
coverage for national championship events for U.S.A. gymnastics, and U.S.
Swimming and Diving. I have also covered professional soccer in Des Moines.
4. Since 2006, I have been the physician owner of Stadia Sports Medicine
in West Des Moines, Iowa. My practice focuses on treatment of sports and activity-
related injury, including concussive injury, as well as problems related to the
physiology of sport.
5. I have served in and provided leadership for several professional
organizations over the course of my career. In 2004, I was designated a Fellow of the
American College of Sports Medicine (ACSM). I have served on ACSM’s Health and
Science Policy Committee since 2010, and for a time chaired their Clinical Medicine
Subcommittee. From 2009 to 2013, I served two elected terms on the Board of
Directors of the American Medical Society for Sports Medicine (AMSSM), and during
5
that time served as Chair of that body's Practice and Policy Committee. I was
subsequently elected to a four-year term on AMSSM’s executive committee in 2017,
and from 2019–20, I served as AMSSM’s President. AMSSM is the largest
organization of sports medicine physicians in the world. I gained fellowship status
through AMSSM in 2020—my first year of eligibility. My work for ACSM and AMSSM
has brought with it extensive experience in public policy as relates to Sports Medicine.
6. In 2020, I was named as AMSSM’s first board delegate to the newly-
constituted Physical Activity Alliance. I am a named member of an NCAA advisory
group on COVID-19, through which I provided input regarding the cancellation of the
basketball tournament in 2020. I also serve as a member of the Iowa Medical Society’s
Sports Medicine Subcommittee and have been asked to serve on the Iowa High School
Athletic Association’s newly-forming Sports Medicine Advisory Committee, with
organizing meetings scheduled for April, 2024.
7. I have served as a manuscript reviewer for organizational policy
pronouncements, and for several professional publications, most recently separate
sports medicine board review books published in 2021 and 2023. I have published
several articles on topics related to musculoskeletal injuries in sports and
rehabilitation, which have been published in peer-reviewed journals such as Clinical
Journal of Sports Medicine, British Journal of Sports Medicine, Current Reviews in
Musculoskeletal Medicine, Athletic Therapy Today, and the Journal of Athletic
Training. In conjunction with my work in policy advocacy, I have helped write several
pieces of legislation, including the initial draft of what became the Sports Medicine
Licensure Clarity Act, signed into law by President Trump in 2018, which eases the
6
restrictions on certain practitioners to provide health services to athletes and athletic
teams outside of the practitioner’s home state. A list of my publications over the past
ten (10) years is included as an appendix to this report.
8. In the past four years, I testified as an expert witness by deposition in
B.P.J. v. West Virginia, S.D. W.V., No. 2:21-cv-00316 and LE. vs. Lee, No. 3:21-cv-
00835.
9. I am being compensated for my services as an expert witness in this case
at the rates of $650 per hour for consultation, $800 per hour for deposition or trial
testimony.
I. OVERVIEW
10. In this statement, I offer information and my own professional opinion
on the potential for increased injury risk to females in sports when they compete
against biologically male transgender athletes. 7 At many points in this statement, I
provide citations to published, peer-reviewed articles that provide relevant and
supporting information to the points I make.
11. The principal conclusions that I set out in this white paper are as follows:
a. Government and sporting organizations have historically considered

the preservation of athlete safety as one component of competitive
equity.
7 In the body of this paper, I use the terms “male” and “female” according to their ordinary medical
meaning—that is to say, to refer to the two biological sexes. I also use the word “man” to refer to a
biologically male human, and “woman” to refer to a biologically female human. In the context of this
opinion, I include in these categories non-syndromic, biologically-normal males and females who
identify as a member of the opposite sex, including those who use endogenous hormone suppression
to alter their body habitus. In contexts that are not focused on questions of biology and physiology,
terms of gender are sometimes used to refer to subjective identities rather than to biological
categories—something I avoid for purposes of a paper focused on sports science.
7
b. Injury in sport is somewhat predictable based on modeling

assumptions that take into account relevant internal and external risk
factors.
c. Males exhibit large average advantages in size, weight, and physical

capacity over females—often falling far outside female ranges. Even
before puberty, males have a performance advantage over females in
most athletic events. Failure to preserve protected female-only
categories in contact sports (broadly defined) will ultimately increase
both the frequency and severity of injury suffered by female athletes who
share playing space with these males.
d. Current research supports the conclusion that suppression of

testosterone levels by males who have already begun puberty will not
fully reverse the effects of testosterone on skeletal size, strength, or
muscle hypertrophy, leading to persistence of sex-based differences in
power, speed, and force-generating capacity.
12. In this white paper, I use the term “contact sports” to refer broadly to all
sports in which collisions between players, or collisions between equipment such as a
stick or ball and the body of a player, occur with some frequency (whether or not
permitted by the rules of the game), and are well recognized in the field of sports
medicine as causes of sport-related injuries. 8 The 1975 Title IX implementing
regulations (34 CFR § 106.41) say that “for purposes of this [regulation] contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the
purpose or major activity of which involves bodily contact.” Certainly, all of the sports
specifically named in the regulation fall within my definition of “contact sport.” Mixed
martial arts, field hockey (Barboza 2018), soccer (Kuczinski 2018), rugby (Viviers
8 It is common to see, within the medical literature, reference to distinctions between “contact” and
“collision” sports. For purposes of clarity, I have combined these terms, since in the context of injury
risk modeling, there is no practical distinction between them.
8
2018), lacrosse (Pierpoint 2019), volleyball, 9 baseball, and softball also involve
collisions that can and do result in injuries, and so also fall within my definition.
II. A BRIEF HISTORY OF THE RATIONALE FOR SEPARATION OF

SPORT BY SEX
13. World Rugby is correct when it notes that “the women’s category exists
to ensure protection, safety, and equality” for women. (World Rugby Transgender
Women Guidelines 2020.) To some extent, those in charge of sport governing bodies
in the modern era have always recognized the importance of grouping athletes
together based on physical attributes, in order to ensure both safety and competitive
balance. Weight classifications have existed in wrestling since it reappeared as an
Olympic event in 1904. Women and men have participated in separate categories
since the advent of intercollegiate sporting clubs early in the 20th century. When Title
IX went into effect in 1975, there were just under 300,000 female high school athletes,
and fewer than 10,000 female collegiate athletes. With the changes that resulted from
Title IX, it was assumed that newly available funds for women in sport would ensure
the maintenance of existing, or creation of new, sex-segregated athletic teams that
would foster greater participation by women. This has been borne out subsequently;
by the first half of the 1980’s these numbers had risen to 1.9 million and nearly
100,000 respectively. (Hult 1989.)
14. The rationale for ongoing “separate but equal” status when it came to
sex-segregated sports was made clear within the language of the original
9See https://www.latimes.com/sports/story/2020-12-08/stanford-volleyball-hayley-hodson-
concussions-cte-lawsuit, and https://volleyballmag.com/corinneatchison/ (both accessed 6/20/21).
9
implementing regulations of Title IX, which, acknowledging real, biologically-driven
differences between the sexes, created carve-out exceptions authorizing sex-
separation of sport for reasons rooted in the maintenance of competitive equity.
Importantly, the effect of these innate sex-based differences on the health and safety
of the athlete were acknowledged by the express authorization of sex-separated teams
for sports with higher perceived injury risk—i.e., “contact sports.” (Coleman 2020.)
15. In the almost half century since those regulations were adopted, the
persistent reality of sex-determined differences in athletic performance and safety
has been recognized by the ongoing and nearly universal segregation of men’s and
women’s teams—even those that are not classically defined as being part of a contact
or collision sport.
16. Now, however, many schools and sports leagues in this country are
permitting males to compete in female athletics—including in contact sports—based
on gender identity. In my view, these policies have been adopted without careful
analysis of safety implications. Other researchers and clinicians have addressed
questions of the negative impact of such policies on fairness, or equality of athletic
experiences for girls and women, in published articles, and in court submissions. One
recent review of track and field performances, including sprints, distance races and
field events, noted that men surpass the top female performance in each category
between 1000 and 10,000 times each year, with hundreds or thousands of men beating
the top women in each event. (Coleman & Shreve.) Although this was not their
primary focus, World Rugby well-summarized the point when it observed that in a
ranking list of the top thousand performances in most sports, every year, every one
10
will have been achieved by a biological male. (World Rugby Transgender Women
Guidelines 2020.) Although most easily documented in athletes who have gone
through puberty, these differences are not exclusively limited to post-pubescent
athletes either (Atkinson 2023). Thus, some national sport governing bodies have
tightened their policies recently to restrict some transgender athletes who began
transition at eleven or twelve years of age from competing in future sanctioned events
in their identified gender. (McLarnon 2023)
17. Global population-based fitness testing over wide geographical regions
reveals consistent measurable performance advantages of boys over girls in tests
measuring speed, upper and lower body limb strength and power. (Kasovic 2021; De
Miguel-Etayo 2014; Tambalis 2016; Catley 2013.) Prospective data involving the
training of eight-year-old boys and girls in kicking and throwing ability shows
consistently higher performance of boys over girls at baseline, and similar gains from
baseline in both sexes after coaching. (Dohrmann 1964.) I have reviewed the expert
declaration of Gregory A. Brown, Ph.D., FACM of February 23, 2022, provided in West
Virginia’s case, which includes evidence from a wide variety of sources, including
population-based mass testing data, as well as age-stratified competition results, all
of which support the idea that prepubertal males run faster, jump higher and farther,
exhibit higher aerobic power output, and have greater upper body strength (evidenced
by stronger hand grip and better performance with chin-ups or bent arm hang) than
comparably aged females. This performance gap is well-documented in population-
based physiologic testing data that exists in databases such as the Presidential Fitness
Test, the Eurofit Fitness test, and additional mass testing data from the UK and
11
Australia. Collectively, this data reveals that pre-pubertal males outperform
comparably aged females in a wide array of athletic tests including but not limited to
the countermovement jump test, drop jump test, change of direction test, long jump,
timed sit-up test, the 10 X 5 meter shuttle run test, the 20 meter shuttle run test, curl-
ups, pull-ups, push-ups, one mile run, standing broad jump, and bent arm hang test.
Dr. Brown further references studies showing a significant difference in the body
composition of males and females before puberty. In sum, a large and unbridgeable
performance gap between the sexes is well-studied and equally well-documented,
beginning in many cases before puberty. In this white paper, I focus on some of these
differences as they touch on the question of athlete safety.
III. UNDERSTANDING THE CAUSES OF SPORTS INJURIES
18. The causes for injury in sport are multifactorial. In recent decades,
medical researchers have provided us an evolving understanding of how sports
injuries occur, as well as the factors that make them more or less probable, and more
or less severe. Broadly speaking, there are two ways of modeling injury: the
epidemiological model, and the biomechanical model. These models are not mutually
exclusive, but provide complementary conceptual frameworks to help us stratify risk
in sport.
A. The epidemiological model of injury
19. From a practical standpoint, sports medicine researchers and clinicians
often use the “epidemiological model” to explain, prevent and manage sports injuries.
Broadly speaking, this model views an injury in sport as the product of internal and
external risk factors, triggered by an inciting event. In other words, a given injury is
12
“caused” by a number of different factors that are unique to a given situation.
(Meeuwise 1994.) When the interplay of these factors exceeds the injury threshold,
injury occurs. One example of how this interplay might work would be a female
distance runner in track who develops a tibial stress fracture, with identified risks of
low estrogen state from amenorrhea (suppression of menses), an aggressive winter
training program on an indoor tile surface, and shoes that have been used for too
many miles, and are no longer providing proper shock absorption. Most risk factors
ebb and flow, with the overall injury risk at any given time fluctuating as well. Proper
attention to risk factor reduction before the start of the sports season (including
appropriate rule-making) is the best way to reduce actual injury rates during the
season.
20. As alluded to, the risk factors associated with injury can be broadly
categorized as internal or external. Internal risk factors are internal to the athlete.
These include relatively fixed variables, such as the athlete’s age, biological sex, bone
mineral density (which affects bone strength) and joint laxity, as well as more
mutable variables such as body weight, fitness level, hydration state, current illness,
prior injury, or psychosocial factors such as aggression.
21. External risk factors are, as the name suggests, external to the athlete.
These include non-human risks such as the condition of the playing surface or
equipment, athletic shoe wear, or environmental conditions. Other external risk
factors come from opposing competitors, and include such variables as player size,
speed, aggressiveness, and overall adherence to the rules of the game. As already
mentioned, these risks can be minimized through the proper creation and
13
enforcement of rules, as well as the appropriate grouping of athletes together for
purposes of competition. To the latter point, children don’t play contact sports with
adults and, in the great majority of cases, men and women compete in categories
specific to their own biological sex. Certainly these categorical separations are
motivated in part by average performance differences and considerations of fairness
and opportunity. But they are also motivated by safety concerns. When properly
applied, these divisions enhance safety because, when it comes to physical traits such
as body size, weight, speed, muscle girth, and bone strength, although a certain
amount of variability exists within each group, the averages and medians differ
widely between the separated groups. 10
22. Thus, each of these commonly utilized groupings of athletes represents
a pool of individuals with predictable commonalities. Epidemiological risk assessment
is somewhat predictable and translatable as long as these pools remain intact. But
the introduction of outside individuals into a given pool (e.g. an adult onto a youth
football team, or males into most women’s sports) would change the balance of risk
inside that pool. Simply put, when you introduce larger, faster, and stronger athletes
from one pool into a second pool of athletes who are categorically smaller (whether as
a result of age or sex), you have altered the characteristics of the second pool, and,
10In some cases, safety requires even further division or exclusion. A welterweight boxer would not
compete against a heavyweight, nor a heavyweight wrestle against a smaller athlete. In the case of
youth sports, when children are at an age where growth rates can vary widely, leagues will
accommodate for naturally-occurring large discrepancies in body size by limiting larger athletes from
playing positions where their size and strength is likely to result in injury to smaller players. Thus,
in youth football, players exceeding a certain weight threshold may be temporarily restricted to
playing on the line and disallowed from carrying the ball, or playing in the defensive secondary,
where they could impose high-velocity hits on smaller players.
14
based on known injury modeling, have statistically increased the injury risk for the
original athletes in that pool. This, in a nutshell, is the basis for World Rugby’s
recommendations.
23. Most clinical studies of the epidemiology of sports injuries use a
multivariate approach, identifying multiple independent risk factors and examining
how these factors might interact, in order to determine their relative contribution to
injury risk, and make educated inferences about causation. (Meeuwise 1994.)
24. In applying the multivariate approach, the goal is to keep as many
variables as possible the same so as to isolate the potential effect of a single variable
(such as age or biological sex) on injury risk, as well as to determine how the isolated
variable interacts with the other analyzed variables to affect injury risk. Failure to
consider relevant independent variables can lead to error. Researchers focusing on
differences between male and female athletes, for example, would not compare
concussion rates of a high school girls’ soccer team to concussion rates of a professional
men’s soccer team, because differences in the concussion rate might be due to a
number of factors besides sex, such as age, body mass, relative differences in skill,
speed, or power, as well as differences in training volume and intensity.
25. As indicated earlier, an injury event is usually the end product of a
number of different risk factors coming together. (Bahr 2005.) A collision between two
soccer players who both attempt to head the ball, for example, might be the inciting
event that causes a concussion. Although the linear and angular forces that occur
through sudden deceleration would be the proximate cause of this injury, the
epidemiological model of injury would also factor in “upstream” risks, predicting the
15
possibility of an injury outcome for each athlete differently depending on the sum of
these risks. If the collision injury described above occurs between two disparately-
sized players, the smaller athlete will tend to decelerate more abruptly than the
larger athlete, increasing the smaller athlete’s risk for injury. Additional
discrepancies in factors such as neck strength, running speeds, and muscle force
generation capacity all result in differing risks and thus, the potential for differing
injury outcomes from the same collision. As I discuss later in this white paper, there
are significant statistical differences between the sexes when it comes to each of these
variables, meaning that in a collision sport where skeletally mature males and
females are playing against one another, there is a higher statistical likelihood that
injury will result when collisions occur, and in particular there is a higher likelihood
that a female will suffer injury. This again is the basis for the recent decision by World
Rugby to disallow the crossover of men into women’s rugby, regardless of gender
identity. (World Rugby Transgender Women Guidelines 2020.) The decision-making
represented by this policy change is rational and rooted in objective facts and objective
risks of harm, because it takes real, acknowledged, and documented physical
differences between the sexes (in many cases before adolescence), and models
expected injury risk on the basis of the known differences that persist even after
hormone manipulation.
B. The biomechanical model of injury
26. Sports medicine researchers and clinicians also consider a
biomechanical approach when it comes to understanding sports injuries. In the
biomechanical model of injury, injury is considered to be analogous to the failure of a
16
machine or other structure. Every bone, muscle, or connective tissue structure in an
athlete’s body has a certain load tolerance. Conceptually, when an external “load”
exceeds the load tolerance of a given structure in the human body, an injury occurs.
(Fung 1993 at 1.) Thus, researchers focus on the mechanical load—the force exerted
on a bone, ligament, joint or other body part—and the load tolerance of that impacted
or stressed body part, to understand what the typical threshold for injury is, and how
predictable this might be. (McIntosh 2005 at 2–3.) Biomechanical models of injury
usually consider forces in isolation. The more consistent the movement pattern of an
individual, and the fewer the contributions of unexpected outside forces to the athlete,
the more accurate biomechanical predictions of injury will be.
27. Biomechanical modeling can be highly predictive in relatively simple
settings. For example, in blunt trauma injury from falls, mortality predictably rises
the greater the fall. About 50% of people who fall four stories will survive, while only
10% will survive a fall of seven stories. (Buckman 1991.) As complexity increases,
predictability in turn decreases. In sport, the pitching motion is highly reproducible,
and strain injury to the ulnar collateral ligament (UCL) of the elbow can be modeled.
The load tolerance of the UCL of a pitcher’s elbow is about 32 Newton-meters, but the
failure threshold of a ligament like this in isolation is not the only determinant of
whether injury will occur. During the pitching motion, the valgus force imparted to
the elbow (gapping stress across the inner elbow that stretches the UCL) routinely
reaches 64 Newtons, which is obviously greater than the failure threshold of the
ligament. Since not all pitchers tear their UCLs, other variables innate to an athlete
must mitigate force transmission to the ligament and reduce risk. The load tolerance
17
of any particular part of an athlete’s body is thus determined by other internal factors
such as joint stiffness, total ligament support, muscle strength across the joint, or
bone mineral density. Injury load can be self-generated, as in the case of a pitcher’s
elbow, or externally-generated, as in the case of a linebacker hitting a wide receiver.
While load tolerance will vary by individual, as described above, and is often reliant
on characteristics innate to a given athlete, external load is determined by outside
factors such as the nature of the playing surface or equipment used, in combination
with the weight and speed of other players or objects (such as a batted ball) with
which the player collides. (Bahr 2005.)
28. As this suggests, the two “models” of sports injuries described above are
not in any sense inconsistent or in tension with each other. Instead, they are
complementary ways of thinking about injuries that can provide different insights.
But the important point to make regarding these models is that in either model,
injury risk (or the threshold for injury) rises and falls depending on the size of an
externally-applied force, and the ability of a given athlete to absorb or mitigate that
force.
IV. THE PHYSICS OF SPORTS INJURY
29. Sports injuries often result from collisions between players, or between
a player and a rapidly moving object (e.g. a ball or hockey puck, a lacrosse or hockey
stick). In soccer, for example, most head injuries result from collisions with another
player’s head or body, collision with the goal or ground, or from an unanticipated blow
from a kicked ball. (Boden 1998; Mooney 2020.) In basketball, players often collide
with each other during screens, while diving for a loose ball, or while driving to the
18
basket. In lacrosse or field hockey, player-to-player, or player-to-stick contact is
common.
30. But what are the results of those collisions on the human body? Basic
principles of physics can cast light on this question from more than one angle. A
general understanding of these principles can help us identify factors that will
predictably increase the relative risk, frequency, and severity of sports injuries, given
certain assumptions.
31. First, we can consider energy. Every collision involves an object or
objects that possess energy. The energy embodied in a moving object (whether a
human body, a ball, or anything else) is called kinetic energy.
32. Importantly, the kinetic energy of a moving object is expressed as:
𝟏𝟏
𝑬𝑬𝒌𝒌 = 𝟐𝟐 𝒎𝒎𝒗𝒗𝟐𝟐 . That is, kinetic energy is a function of the mass of the object multiplied by
the square of its velocity. (Dashnaw 2012.) To illustrate with a simple but extreme
example: if athletes A and B are moving at the same speed, but athlete A is twice as
heavy, athlete A carries twice as much kinetic energy as athlete B. If the two athletes
weigh the same amount, but athlete A is going twice as fast, athlete A carries four
times as much kinetic energy as athlete B. But as I have noted, the kinetic energy of
a moving object is a function of the mass of the object multiplied by the square of its
velocity. Thus, if athlete A is twice as heavy, and moving twice as fast, athlete A will
carry eight times the kinetic energy of athlete B into a collision. 11
11 2 × 22 = 8
19
33. The implication of this equation means that what appear to be relatively
minor discrepancies in size and speed can result in major differences in energy
imparted in a collision, to the point that more frequent and more severe injuries can
occur. To use figures that correspond more closely to average differences between men
and women, if Player M weighs only 20% more than Player F, and runs only 15%
faster, Player M will bring 58% more kinetic energy into a collision than Player F. 12
34. The law of conservation of energy tells us that energy is never destroyed
or “used up.” If kinetic energy is “lost” by one body in a collision, it is inevitably
transferred to another body, or into a different form. In the case of collision between
players, or between (e.g.) a ball and a player’s head, some of the energy “lost” by one
player, or by the ball, may be transformed into (harmless) sound; some may result in
an increase in the kinetic energy of the player who is struck (through acceleration,
which I discuss below); but some of it may result in deformation of the player’s body—
which, depending on its severity, may result in injury. Thus, the greater the kinetic
energy brought into a collision, the greater the potential for injury, all other things
being equal.
35. Alternately, we can consider force and acceleration, which is particularly
relevant to concussion injuries.
36. Newton’s third law of motion tells us that when two players collide, their
bodies experience equal and opposite forces at the point of impact.
12 1.2 × (1.15)2 = 1.587
20
37. Acceleration refers to the rate of change in speed (or velocity). When two
athletes collide, their bodies necessarily accelerate (or decelerate) rapidly: stopping
abruptly, bouncing back, or being deflected in a different direction. Newton’s second
law of motion tells us that: 𝑭𝑭 = 𝒎𝒎𝒎𝒎 (that is, force equals mass multiplied by
acceleration). From this equation we see that when a larger and a smaller body
collide, and (necessarily) experience equal and opposite forces, the smaller body (or
smaller player, in sport) will experience more rapid acceleration. We observe this
physical principle in action when we watch a bowling ball strike bowling pins: the
heavy bowling ball only slightly changes its course and speed; the lighter pins go
flying.
38. This same equation also tells us that if a given player’s body or head is
hit with a larger force (e.g., from a ball that has been thrown or hit faster), it will
experience greater acceleration, everything else being equal.
39. Of course, sport is by definition somewhat chaotic, and forces are often
not purely linear. Many collisions also involve angular velocities, with the production
of rotational force, or torque. Torque can be thought of as force that causes rotation
around a central point. A different but similar equation of Newtonian physics governs
the principles involved. 13 Torque is relevant to injury in several ways. When torque
is applied through joints in directions those joints are not able to accommodate, injury
can occur. In addition, rotational force can cause different parts of the body to
13In this equation, 𝝉𝝉 = 𝑰𝑰𝑰𝑰, torque equals moment of inertia multiplied by angular acceleration, where
“moment of inertia” is defined as 𝑰𝑰 = 𝒎𝒎𝒓𝒓𝟐𝟐 , that is, mass multiplied by the square of the distance to
the rotational axis.
21
accelerate at different rates—in some cases, very rapid rates, also leading to injury.
For example, a collision where the body is impacted at the waist can result in high
torque and acceleration on the neck and head.
40. Sport-related concussion—a common sports injury and one with
potentially significant effects—is attributable to linear, angular, or rotational
acceleration and deceleration forces that result from impact to the head, or from an
impact to the body that results in a whiplash “snap” of the head. (Rowson 2016.) In
the case of a concussive head injury, it is the brain that accelerates or decelerates on
impact, colliding with the inner surface of the skull. (Barth 2001 at 255.)
41. None of this is mysterious: each of us, if we had to choose between being
hit either by a large, heavy athlete running at full speed, or by a small, lighter athlete,
would intuitively choose collision with the small, light athlete as the lesser of the two
evils. And we would be right. One author referred to the “increase in kinetic energy,
and therefore imparted forces” resulting from collision with larger, faster players as
“profound.” (Dashnaw 2012.)
V. GENDER DIFFERENCES RELEVANT TO INJURY
42. It is important to state up front that it is self-evident to most people
familiar with sport and sport injuries that if men and women were to consistently
participate together in competitive contact sports, there would be higher rates of
injury in women. This is one reason that rule modifications often exist in leagues
where co-ed participation occurs. 14 Understanding the physics of sports injuries helps
14 For example, see https://www.athleticbusiness.com/college/intramural-coed-basketball-playing-
rules-vary-greatly.html (detailing variety of rule modifications applied in co-ed basketball). Similarly,

22
provide a theoretical framework for why this is true, but so does common sense and
experience. All of us are familiar with basic objective physiological differences
between the sexes, some of which exist in childhood, and some of which become
apparent after the onset of puberty, and persist throughout adulthood. And as a result
of personal experience, all of us also have some intuitive sense of what types of
collisions are likely to cause pain or injury. Not surprisingly, our “common sense” on
these basic facts about the human condition is also consistent with the observations
of medical science. Below, I provide quantifications of some of these well-known
differences between the sexes that are relevant to injury risk, as well as some
categorical differences that may be less well known.
A. Height and weight
43. It is an inescapable fact of the human species that males as a group are
statistically larger and heavier than females. On average, men are 7% to 8% taller
than women. (Handelsman 2018 at 818.) According to the most recently available
Centers for Disease Control and Prevention (CDC) statistics, the weight of the
average U.S. adult male is 16% greater than that of the average U.S. adult female.
(CDC 2018.) This disparity persists into the athletic cohort. Researchers find that
while athletes tend on average to be lighter than non-athletes, the weight difference
between the average adult male and female athlete remains within the same range—
between 14% and 23%, depending on the sport analyzed. (Santos 2014; Fields 2018.)
Indeed, World Rugby estimates that the typical male rugby player weighs 20% to
coed soccer leagues often prohibit so-called “slide tackles,” which are not prohibited in either men’s or
women’s soccer. See, e.g.., http://www.premiercoedsports.com/pages/rulesandpolicies/soccer.
23
40% more than the typical female rugby player. (World Rugby Transgender Women
Guidelines 2020.) This size advantage by itself allows men to bring more force to bear
in a collision.
B. Bone and connective tissue strength
44. Men have bones in their arms, legs, feet, and hands that are both larger
and stronger per unit volume than those of women, due to greater cross-sectional
area, greater bone mineral content, and greater bone density. The advantage in bone
size (cross-sectional area) holds true in both upper and lower extremities, even when
adjusted for lean body mass. (Handelsman 2018 at 818; Nieves 2005 at 530.) Greater
bone size in men is also correlated with stronger tendons that are more adaptable to
training (Magnusson 2007), and an increased ability to withstand the forces produced
by larger muscles (Morris 2020 at 5). Male bones are not merely larger, they are
stronger per unit of volume. Studies of differences in arm and leg bone mineral
density—one component of bone strength—find that male bones are denser, with
measured advantages of between 5% and 14%. (Gilsanz 2011; Nieves 2005.)
45. Men also have larger ligaments than women (Lin 2019 at 5), and stiffer
connective tissue (Hilton 2021 at Table 1), providing greater protection against joint
injury.
C. Speed
46. When it comes to acceleration from a static position to a sprint, men are
consistently faster than women. World record sprint performance gaps between the
sexes remain significant at between 7% and 10.5%, with world record times in women
now exhibiting a plateau (no longer rapidly improving with time) similar to the
24
historical trends seen in men. (Cheuvront 2005.) This performance gap has to do with,
among other factors, increased skeletal stiffness, greater cross-sectional muscle area,
denser muscle fiber composition and greater limb length. (Handelsman 2018.)
Collectively, males, on average, run about 10% faster than females. (Lombardo 2018
at 93.) This becomes important as it pertains to injury risk, because males involved
in sport will often be travelling at faster speeds than their female counterparts in
comparable settings, with resultant faster speed at impact, and thus greater impact
force, in a given collision.
D. Strength/Power
47. In 2014, a male mixed-martial art fighter identifying as female and
fighting under the name Fallon Fox fought a woman named Tamikka Brents, and
caused significant facial injuries in the course of their bout. Speaking about their fight
later, Brents said:
“I’ve fought a lot of women and have never felt the strength
that I felt in a fight as I did that night. I can’t answer
whether it’s because she was born a man or not because I’m
not a doctor. I can only say, I’ve never felt so overpowered
ever in my life, and I am an abnormally strong female in
my own right.” 15
48. So far as I am aware, mixed martial arts is not a collegiate or high school
interscholastic sport. Nevertheless, what Brent experienced in an extreme setting is
true and relevant to safety in all sports that involve contact. In absolute terms, males
as a group are substantially stronger than women.
15 https://bjj-world.com/transgender-mma-fighter-fallon-fox-breaks-skull-of-her-female-opponent/
25
49. Compared to women, men have “larger and denser muscle mass, and
stiffer connective tissue, with associated capacity to exert greater muscular force
more rapidly and efficiently.” (Hilton 2021 at 201.) Research shows that on average,
during the prime athletic years (ages 18–29) men have, on average, 54% greater total
muscle mass than women (33.7 kg vs. 21.8 kg) including 64% greater muscle mass in
the upper body, and 47% greater in the lower body. (Janssen 2000 at Table 1.) The
cross-sectional area of muscle in women is only 50% to 60% that of men in the upper
arm, and 65% to 70% of that of men in the thigh. This translates to women having
only 50% to 60% of men's upper limb strength and 60% to 80% of men's lower limb
strength. (Handelsman 2018 at 812.) Male weightlifters have been shown to be
approximately 30% stronger than female weightlifters of equivalent stature and
mass. (Hilton 2021 at 203.) But in competitive athletics, since the stature and mass
of the average male exceeds that of the average female, actual differences in strength
between average body types will, on average, exceed this. The longer limb lengths of
males augment strength as well. Statistically, in comparison with women, men also
have lower total body fat, differently distributed, and greater lean muscle mass, which
increases their power-to-weight ratios and upper-to-lower limb strength ratios as a
group. Looking at another common metric of strength, males average 57% greater
grip strength (Bohannon 2019) and 54% greater knee extension torque (Neder 1999).
Research shows that sex-based discrepancies in lean muscle mass begin to be
established from infancy, and persist through childhood to adolescence. (Davis 2019;
Kirchengast 2001; Taylor 1997; Taylor 2010; McManus 2011.)
26
50. Using their legs and torso for power generation, men can apply
substantially larger forces with their arms and upper body, enabling them to generate
more ball velocity through overhead motions, as well as to generate more pushing or
punching power. In other words, isolated sex-specific differences in muscle strength
in one region (even differences that in isolation seem small) can, and do combine to
generate even greater sex-specific differences in more complex sport-specific
functions. One study looking at moderately-trained individuals found that males can
generate 162% more punching power than females. (Morris 2020.) Thus, multiple
small advantages aggregate into larger ones.
E. Throwing and kicking speed
51. One result of the combined effects of these sex-determined differences in
skeletal structure is that men are, on average, able to throw objects faster than
women. (Lombardo 2018; Chu 2009; Thomas 1985.) By age seventeen, the average
male can throw a ball farther than 99% of seventeen-year-old females—which
necessarily means at a faster initial speed assuming a similar angle of release—
despite the fact that factors such as arm length, muscle mass, and joint stiffness
individually don’t come close to exhibiting this degree of sex-defined advantage. One
study of elite male and female baseball pitchers showed that men throw baseballs
35% faster than women—81 miles/hour for men vs. 60 miles/hour for women. The
authors of this study attribute this to a sex-specific difference in the ability to
generate muscle torque and power. (Chu 2009.) A study showing greater throwing
velocity in male versus female handball players attributed it to differences in body
size, including height, muscle mass, and arm length. (Van Den Tillaar 2012.)
27
Interestingly, significant sex-related difference in throwing ability has been shown to
manifest even before puberty, but the difference increases rapidly during and after
puberty. (Thomas 1985 at 266.) These sex-determined differences in throwing speed
are not limited to sports where a ball is thrown. Males have repeatedly been shown
to throw a javelin more than 30% farther than females. (Lombardo 2018 Table 2;
Hilton 2021 at 203.) Even in preadolescent children, differences exist. International
youth records for 5- to 12-year-olds in the javelin show 34–55% greater distance in
males vs. females using a 400g javelin. 16
52. Men also serve and spike volleyballs with higher velocity than women,
with a performance advantage in the range of 29–34%. (Hilton 2021.) Analysis of first
and second tier Belgian national elite male volleyball players shows ball spike speeds
of 63 mph and 56 mph respectively. (Forthomme 2005.) NCAA Division I female
volleyball players—roughly comparable to the second-tier male elite group referenced
above—average a ball spike velocity of approximately 40 mph (18.1 m/s). (Ferris 1995
at Table 2.) Notably, based on the measurements of these studies, male spiking speed
in lower elite divisions is almost 40% greater than that of NCAA Division I female
collegiate players. Separate analyses of serving speed between elite men and women
Spanish volleyball players showed that the average power serving speed in men was
54.6 mph (range 45.3–64.6 mph), with maximal speed of 76.4 mph. In women, average
power serving speed was 49 mph (range 41–55.3 mph) with maximal speed of 59 mph.
16 http://age-records.125mb.com/.
28
This translates to an almost 30% advantage in maximal serve velocity in men. (Palao
2014.)
53. Recall that kinetic energy is dependent on mass and the square of
velocity. A volleyball (with fixed mass) struck by a male, and traveling an average
35% faster than one struck by a female, will deliver 82% more energy to a head upon
impact.
54. The greater leg strength and jumping ability of men confer a further
large advantage in volleyball that is relevant to injury risk. In volleyball, an “attack
jump” is a jump to position a player to spike the ball downward over the net against
the opposing team. Research on elite national volleyball players found that on
average, males exhibited a 50% greater vertical jump height during an “attack” than
did females. (Sattler 2015.) Similar data looking at countermovement jumps (to block
a shot) in national basketball players reveals a 35% male advantage in jump height.
(Kellis 1999.) In volleyball, this dramatic difference in jump height means that male
players who are competing in female divisions will more often be able to successfully
perform a spike, and this will be all the more true considering that the women’s net
height is seven inches lower than that used in men’s volleyball. Confirming this
inference, research also shows that the successful attack percentage (that is, the
frequency with which the ball is successfully hit over the net into the opponent’s court
in an attempt to score) is so much higher with men than women that someone
analyzing game statistics can consistently identify games played by men as opposed
to women on the basis of this statistic alone. These enhanced and more consistently
29
successful attacks by men directly correlate to their greater jumping ability and
attack velocity at the net. (Kountouris 2015.)
55. The combination of the innate male-female differences cited above, along
with the lower net height in women’s volleyball, means that if a reasonably athletic
male is permitted to compete against women, the participating female players will
likely be exposed to higher ball velocities that are outside the range of what is
typically seen in women’s volleyball. When we recall that ball-to-head impact is a
common cause of concussion among women volleyball players, this fact makes it clear
that participation in girls’ or women’s volleyball by biologically male individuals will
increase concussion injury risk for participating girls or women.
56. Male sex-based advantages in leg strength also lead to greater kick
velocity. In comparison with women, men kick balls harder and faster. A study
comparing kicking velocity between university-level male and female soccer players
found that males kick the ball with an average 20% greater velocity than females.
(Sakamoto 2014.) Applying the same principles of physics we have just used above,
we see that a soccer ball kicked by a male, travelling an average 20% faster than a
ball kicked by a female, will deliver 44% more energy on head impact. Greater force-
generating capacity will thus increase the risk of an impact injury such as concussion.
VI. ENHANCED FEMALE VULNERABILITY TO CERTAIN INJURIES
57. Above, I have reviewed physiological differences that result in the male
body bringing greater weight, speed, and force to the athletic field or court, and how
these differences can result in a greater risk of injury to females when males compete
against them. It is also true that the female body is more vulnerable than the male
30
body to certain types of injury even when subject to comparable forces. This risk
appears to extend to the younger age cohorts as well. An analysis of Finnish student
athletes from 1987–1991, analyzing over 600,000 person-years of activity exposures,
found, in students under fifteen years of age, higher rates of injury in girls than boys
in soccer, volleyball, judo and karate. (Kujala 1995.) Another epidemiological study
looking specifically at injury rates in over 14,000 middle schoolers over a 20 year
period showed that “in sex-matched sports, middle school girls were more likely to
sustain any injury (RR = 1.15, 95% CI = 1.1, 1.2) or a time-loss injury (RR = 1.09, 95%
CI = 1.0, 1.2) than middle school boys.” In analyzed both-sex sports (i.e., sex-separated
sports that both girls and boys play, like soccer), girls sustained higher injury rates,
and greater rates of time-loss injury. (Beachy 2014.) Another study of over 2000
middle school students at nine schools showed that the injury rate was higher for
girls’ basketball than for football (39.4 v 30.7/1000 AEs), and injury rates for girls’
soccer were nearly double that of boys’ soccer (26.3 v. 14.7/1000 AEs). (Caswell 2017.)
In this regard, I will focus on two areas of heightened female vulnerability to
collision-related injury which have been extensively studied: concussions, and
anterior cruciate ligament injuries.
A. Concussions
58. Females are more likely than males to suffer concussions in comparable
sports, and on average suffer more severe and longer lasting disability once a
concussion does occur. (Harmon 2013 at 4; Berz 2015; Blumenfeld 2016; Covassin
2003; Rowson 2016.) Females also seem to be at higher risk for post-concussion
31
syndrome than males. (Berz 2015; Blumenfeld 2016; Broshek 2005; Colvin 2009;
Covassin 2012; Dick 2009; Marar 2012; Preiss-Farzanegan 2009.)
59. The most widely-accepted definition of sport-related concussion comes
from the Consensus Statement on Concussion in Sport (see below). 17 (McCrory 2018.)
To summarize, concussion is “a traumatically induced transient disturbance of brain
function and involves a complex pathophysiological process” that can manifest in a
variety of ways. (Harmon 2013 at 1.)
60. Sport-related concussions have undergone a significant increase in
societal awareness and concurrent injury reporting since the initial passage of the
Zachery Lystedt Concussion Law in Washington State in 2009 (Bompadre 2014), and
the subsequent passage of similar legislation governing return-to-play criteria for
concussed athletes in most other states in the United States. (Nat’l Cnf. of State Leg’s
2018.) Concussion is now widely recognized as a common sport-related injury,
17 “Sport related concussion is a traumatic brain injury induced by biomechanical forces. Several
common features that may be utilised in clinically defining the nature of a concussive head injury
include:
SRC may be caused either by a direct blow to the head, face, neck or elsewhere on the body with an
impulsive force transmitted to the head.
SRC typically results in the rapid onset of short-lived impairment of neurological function that
resolves spontaneously. However, in some cases, signs and symptoms evolve over a number of
minutes to hours.
SRC may result in neuropathological changes, but the acute clinical signs and symptoms largely
reflect a functional disturbance rather than a structural injury and, as such, no abnormality is seen
on standard structural neuroimaging studies.
SRC results in a range of clinical signs and symptoms that may or may not involve loss of
consciousness. Resolution of the clinical and cognitive features typically follows a sequential course.
However, in some cases symptoms may be prolonged.
The clinical signs and symptoms cannot be explained by drug, alcohol, or medication use, other
injuries (such as cervical injuries, peripheral vestibular dysfunction, etc) or other comorbidities (e.g.,
psychological factors or coexisting medical conditions).”
32
occurring in both male and female athletes. (CDC 2007.) Sport-related concussions
can result from player-surface contact or player-equipment contact in virtually any
sport. However, sudden impact via a player-to-player collision, with rapid
deceleration and the transmission of linear or rotational forces through the brain, is
also a common cause of concussion injury. (Covassin 2012; Marar 2012; Barth 2001;
Blumenfeld 2016; Boden 1998; Harmon 2013 at 4.)
61. A large retrospective study of U.S. high school athletes showed a higher
rate of female concussions in soccer (79% higher), volleyball (0.6 concussions/10,000
exposures, with 485,000 reported exposures, vs. no concussions in the male cohort),
basketball (31% higher), and softball/baseball (320% higher). (Marar 2012.) A
similarly-sized, similarly-designed study comparing concussion rates between NCAA
male and female collegiate athletes showed, overall, a concussion rate among females
40% higher than that of males. Higher rates of injury were seen across individual
sports as well, including ice hockey (10% higher); soccer (54% higher); basketball (40%
higher); and softball/baseball (95% higher). (Covassin 2016.) The observations of
these authors, my own observations from clinical practice, and the acknowledgment
of our own Society’s Position Statement (Harmon 2013), all validate the higher
frequency and severity of sport-related concussions in women and girls.
62. Most epidemiological studies to date looking at sport-related concussion
in middle schoolers show that more boys than girls are concussed. There are fewer
studies estimating concussion rate. This is, in part, because measuring injury rate is
more time and labor-intensive. Researchers at a childrens’ hospital, for example,
could analyze the number of children presenting to the emergency department with
33
sport-related concussion and publish findings of absolute number. However, to study
concussion incidence, athlete exposures also have to be recorded. Generally speaking,
an athlete exposure is a single practice or game where an athlete is exposed to playing
conditions that could reasonably supply the necessary conditions for an injury to
occur. Rates of athletic injury, concussion among them, are then, by convention,
expressed in terms of injury rate per 1000 athletic exposures. More recently, some
studies have been published that analyze the rates of concussion in the middle school
population. Looking at the evidence, the conclusion can be made that females
experience increased susceptibility to concussive injuries before puberty. For
example, Ewing-Cobbs, et al. (2018) found elevated post-concussion symptoms in girls
across all age ranges studied, including children between the ages of 4 and 8. Kerr’s
2017 study of middle school students showed over three times the rate of female vs
male concussion in students participating in sex-comparable sports [0.18 v. 0.66/1000
A.E.’s]. (Kerr 2017.) This is the first study I am aware of that mimics the trends seen
in adolescent injury epidemiology showing a higher rate of concussion in girls than
boys in comparable sports.
63. More recent research looking at the incidence of sport-related
concussions in U.S. middle schoolers between 2015 and 2020, found that the rate of
concussion was higher in middle school athletes than those in high school. In this
study, girls had more than twice the rate of concussion injury (0.49/1000 athletic
exposures vs 0.23/1000 AE) in analyzed sports (baseball/softball, basketball, soccer
and track), as well as statistically greater time loss. (Hacherl 2021 (Journal of Athletic
Training); Hacherl 2021 (Archives of Clinical Neuropsychology).) The authors

34
hypothesized that the increasing incidence of concussion in middle school may relate
to “other distinct differences associated with the middle school sport setting itself,
such as, the large variations in player size and skill.” 18
64. In addition, females on average suffer materially greater cognitive
impairment than males when they do suffer a concussion. Group differences in
cognitive impairment between females and males who have suffered concussion have
been extensively studied. A study of 2340 high school and collegiate athletes who
suffered concussions determined that females had a 170% higher frequency of
cognitive impairment following concussions, and that in comparison with males,
female athletes had significantly greater declines in simple and complex reaction
times relative to their preseason baseline levels. Moreover, the females experienced
greater objective and subjective adverse effects from concussion even after adjusting
for potentially protective effect of helmets used by some groups of male athletes.
(Broshek 2005 at 856, 861; Colvin 2009; Covassin 2012.)
65. This large discrepancy in frequency and severity of concussion injury is
consistent with my own observations across many years of clinical practice. The large
majority of student athletes who have presented at my practice with severe and long-
lasting cognitive disturbance have been adolescent girls. I have seen girls remain
symptomatic for over a year, and lose ground academically and become isolated from
their peer groups due to these ongoing symptoms. For patients who experience these
severe effects, post-concussion syndrome can be life-altering.
18https://www.nata.org/press-release/062421/middle-school-sports-have-overall-higher-rate-
concussion-reported-high-school.
35
66. Some of the anatomical and physiological differences that we have
considered between males and females help to explain the documented differences in
concussion rates and in symptoms between males and females. (Covassin 2016; La
Fountaine 2019; Lin 2019; Tierney 2005; Wunderle 2014.) Anatomically, there are
significant sex-based differences in head and neck anatomy, with females exhibiting
in the range of 30% to 40% less head-neck segment mass and neck girth, and 49%
lower neck isometric strength. This means that when a female athlete’s head is
subjected to the same load as an analogous male, there will be a greater tendency for
head acceleration, and resultant injury. (Tierney 2005 at 276–277.)
67. When modeling the effect of the introduction of male mass, speed, and
strength into women’s rugby, World Rugby gave particular attention to the resulting
increases in forces and acceleration (and injury risk) experienced in the head and neck
of female players. Their analysis found that “the magnitude of the known risk factors
for head injury are . . . predicted by the size of the disparity in mass between players.
The addition of [male] speed as a biomechanical variable further increases these
disparities,” and their model showed an increase of up to 50% in neck and head
acceleration that would be experienced in a typical tackle scenario in women’s rugby.
As a result, “a number of tackles that currently lie beneath the threshold for injury
would now exceed it, causing head injury.” (World Rugby Transgender Women
Guidelines 2020.) While rugby is notoriously contact-intensive, similar increases to
risk of head and neck injury to women are predictable in any sport context in which
males and females collide at significant speed, as happens from time to time in sports
including soccer, softball, and basketball.

36
68. In addition, even when the heads of female and male athletes are
subjected to identical accelerative forces, there are sex-based differences in neural
anatomy and physiology, cerebrovascular organization, and cellular response to
concussive stimuli that make the female more likely to suffer concussive injury, or
more severe concussive injury. For instance, hypothalamic-pituitary disruption is
thought to play a role in post-concussion symptomatology that differentially impacts
women. (McGroarty 2020; Broshek 2005 at 861.) Another study found that elevated
progesterone levels during one portion of the menstrual cycle were associated with
more severe post-concussion symptomatology that differentially impacted women.
(Wunderle 2014.)
69. As it stands, when females compete against each other, they already
have higher rates of concussive injury than males, across most sports. The addition
of biologically male athletes into women’s contact sports will inevitably increase the
risk of concussive injury to girls and women, for the multiple reasons I have explained
above, including, but not limited to, the innate male advantage in speed and lean
muscle mass. Because the effects of concussion can be severe and long-lasting,
particularly for biological females, we can predict with some confidence that if
participation by biological males in women’s contact sports based on gender identity
becomes more common, more biological females will suffer substantial concussive
injury and the potential for long-term harm as a result.
B. Anterior Cruciate Ligament injuries
70. The Anterior Cruciate Ligament (“ACL”) is a key knee stabilizer that
prevents anterior translation of the tibia relative to the femur and also provides
37
rotatory and valgus knee stability. 19 (Lin 2019 at 4.) Girls and women are far more
vulnerable to ACL injuries than are boys and men. The physics of injury that we have
reviewed above makes it inevitable that the introduction of biologically male athletes
into the female category will increase still further the occurrence of ACL injuries
among girls or women who encounter these players on the field.
71. Sports-related injury to the ACL is so common that it is easy to overlook
the significance of it. But it is by no means a trivial injury, as it can end sports careers,
require surgery, and usually results in early-onset, post-traumatic osteoarthritis,
triggering long-term pain and mobility problems later in life. (Wang 2020.)
72. Even in the historic context in which girls and women limit competition
to (and so only collide with) other girls and women, the rate of ACL injury is
substantially higher among female than male athletes. (Flaxman 2014; Lin 2019;
Agel 2005.) One meta-analysis of 58 studies reports that female athletes have a 150%
relative risk for ACL injury compared with male athletes, with other estimates
suggesting as much as a 300% increased risk. (Montalvo 2019; Sutton 2013.)
Particularly in those sports designated as contact sports, or sports with frequent
cutting and sharp directional changes (basketball, field hockey, lacrosse, soccer),
females are at greater risk of ACL injury. In basketball and soccer, this risk extends
across all skill levels, with female athletes between two and eight times more likely
to sustain an ACL injury than their male counterparts. (Lin 2019 at 5.) These
19 Valgus force at the knee is a side-applied force that gaps the medial knee open.
38
observations are widely validated, and consistent with the relative frequencies of ACL
injuries that I see in my own practice.
73. When the reasons underlying the difference in the incidence of ACL
injury between males and females were first studied in the early 1990s, researchers
speculated that the difference might be attributable to females’ relative inexperience
in contact sports, or to their lack of appropriate training. However, a follow-up 2005
study looking at ACL tear disparities reported that, “Despite vast attention to the
discrepancy between anterior cruciate ligament injury rates between men and
women, these differences continue to exist.” (Agel 2005 at 524.) Inexperience and lack
of training do not explain the differences. Sex seems to be an independent predictor
of ACL tear risk.
74. In fact, as researchers have continued to study this discrepancy, they
have determined that multiple identifiable anatomical and physiological differences
between males and females play significant roles in making females more vulnerable
to ACL injuries than males. (Flaxman 2014; Lin 2019; Wolf 2015.) Summarizing the
findings of a number of separate studies, one researcher recently cited as anatomical
risk factors for ACL injury smaller ligament size, decreased femoral notch width,
increased posterior-inferior slope of the lateral tibia plateau, increased knee and
generalized laxity, and increased body mass index (BMI). With the exception of
increased BMI, each of these factors is more likely to occur in female than male
athletes. (Lin 2019 at 5.) In addition, female athletes often stand in more knee valgus
(that is, in a “knock-kneed” posture) due to wider hips and a medially-oriented femur.
Often, this is also associated with a worsening of knee valgus during jump landings.
39
The body types and movement patterns associated with these valgus knee postures
are more common in females and increase the risk for ACL tear. (Hewett 2005.)
75. As with concussion, the cyclic fluctuation of sex-specific hormones in
women is also thought to be a possible risk factor for ACL injury. Estrogen acts on
ligaments to make them more lax, and it is thought that during the ovulatory phase
of menses (when estrogen levels peak), the risk of ACL tear is higher. (Chidi-Ogbolu
2019 at 1; Herzberg 2017.)
76. Whatever the factors that increase the injury risk for ACL tears in
women, the fact that a sex-specific difference in the rate of ACL injury exists is well
established and widely accepted.
77. Although non-contact mechanisms are the most common reason for ACL
tears in females, tears related to contact are also common, with ranges reported
across multiple studies of from 20%–36% of all ACL injuries in women. (Kobayashi
2010 at 672.) For example, when a soccer player who is kicking a ball is struck by
another player in the lateral knee of the stance leg, medial and rotational forces can
tear the medial collateral ligament (MCL), the ACL, and the meniscus. Thus, as
participation in the female category based on identity rather than biology becomes
more common (entailing the introduction of athletes with characteristics such as
greater speed and lean muscle mass), and as collision forces suffered by girls and
women across the knee increase accordingly, the risk for orthopedic injury and in
particular ACL tears among impacted girls and women will inevitably rise.
78. Of course, there exists variation in all these factors within a given group
of males or females. However, it is also true that within sex-specific pools, size
40
differential is somewhat predictable and bounded, even considering outliers. When
males are permitted to enter into the pool of female athletes based on gender identity
rather than biological sex, there is an increased possibility that a statistical outlier in
terms of size, weight, speed, and strength—and potentially an extreme outlier—is
now entering the female pool. Although injury is not guaranteed, risks to female
participants will increase. And as I discuss later, the available evidence together
suggests that this will be true even with respect to males who have been on
testosterone suppression for a year or more. World Rugby relied heavily upon this
when they were determining their own policy, and I think it is important to reiterate
that this policy, rooted in concern for athlete safety, is justifiable based upon current
evidence from medical research and what we know about biology.
VII. TESTOSTERONE SUPPRESSION WILL NOT PREVENT THE HARM

TO FEMALE SAFETY IN ATHLETICS
79. A recent editorial in the New England Journal of Medicine opined that
policies governing transgender participation in female athletics “must safeguard the
rights of all women—whether cisgender or transgender.” (Dolgin 2020.)
Unfortunately, the physics and medical science reviewed above tell us that this is not
practically possible. If biological males are given a “right” to participate in the female
category based on gender identity, then biological women will be denied the right to
reasonable expectations of safety and injury risk that have historically been
guaranteed by ensuring that females compete (and collide) only with other females.
80. Advocates of unquestioning inclusion based on gender identity often
contend that hormonal manipulation of a male athlete can feminize the athlete
41
enough that he is comparable with females for purposes of competition. The NCAA’s
Office of Inclusion asserts (still accessible on the NCAA website as of this writing)
that “It is also important to know that any strength and endurance advantages a
transgender woman arguably may have as a result of her prior testosterone levels
dissipate after about one year of estrogen or testosterone suppression therapy.” 20
(NCAA 2011 at 8.) Whether or not this is true is a critically important question.
81. At the outset, we should note that while advocates sometimes claim that
testosterone suppression can eliminate physiological advantages in a biological male,
none of the relevant transgender eligibility policies that I am aware of prior to 2021
requires any demonstration that it has actually achieved that effect in a particular
male who seeks admission into the female category. The Connecticut policy that is
currently at issue in ongoing litigation permits admission to the female category at
the high school level without requiring any testosterone suppression at all. Prior to
their new policy, just announced in January 2022, the NCAA’s policy required no
demonstration of any reduction of performance capability, change in weight, or
regression of any other physical attribute of the biological male toward female levels.
It did not require achievement of any particular testosterone level, and did not
provide for any monitoring of athletes for compliance. Moving forward, through a
phasing process, the NCAA will ultimately require athletes in each sport to meet
requirements of their sport’s national governing body (NGB). If no policy exists, the
policy of that sport’s international governing body applies, or, finally, if no policy
20https://www.ncaa.org/sports/2016/3/2/lesbian-gay-bisexual-transgender-and-questioning-lgbtq.aspx
INC_TransgenderHandbook.pdf (ncaaorg.s3.amazonaws.com)
42
exists there, the 2015 policy of the International Olympic Committee (IOC) will apply.
The 2015 IOC policy requires no showing of any diminution of any performance
capability or physical attribute of the biological male, and requires achievement and
compliance monitoring only of a testosterone level below 10nmol/liter—a level far
above levels occurring in normal biological females (0.06 to 1.68 nmol/L). 21 Indeed,
female athletes with polycystic ovarian disorder—a condition that results in elevated
testosterone levels—rarely exceed 4.8 nmol/L, which is the basis for setting the
testing threshold to detect testosterone doping in females at 5.0 nmol/L. Thus, males
who qualify under the 2015 IOC policy to compete as transgender women may have
testosterone levels—even after hormone suppression—double the level that would
disqualify a biological female for doping with testosterone. 22
82. As Dr. Emma Hilton has observed, the fact that there are over 3000 sex-
specific differences in skeletal muscle alone makes the hypothesis that sex-linked
performance advantages are attributable solely to current circulating testosterone
levels improbable at best. (Hilton 2021 at 200–01.) Indeed, next to breast tissue, there
is no tissue in the human body with more sex-differentiated genetic expression than
skeletal muscle. (Gershoni 2017)
21 Normal testosterone range in a healthy male averages between 7.7 and 29.4 nmol/L.
22 In November 2021, the IOC released new guidelines, deferring decision-making about a given
sport’s gender-affectedness to its governing body. The current NCAA policy, however, still utilizes the
2015 IOC policy to determine an athlete’s eligibility in event that the sport’s national and
international governing bodies lack policies to determine eligibility.
43
83. Assuming that active treatment with gender-affirming therapies
actually result in full testosterone suppression – the evidence for which is mixed –
(Heather 2022) the available evidence strongly indicates that no amount of
testosterone suppression can eliminate male physiological advantages relevant to
performance and safety. Several authors have recently reviewed the science and
statistics from numerous studies that demonstrate that one year (or more) of
testosterone suppression does not substantially eliminate male performance
advantages. (Hilton 2021; DeVarona 2021; Harper 2021; Hunter 2023) As a medical
doctor, I will focus on those specific sex-based characteristics of males who have
undergone normal sex-determined pubertal skeletal growth and maturation that are
relevant to the safety of female athletes. Here, too, the available science tells us that
testosterone suppression does not eliminate the increased risk to females or solve the
safety problem.
84. The World Rugby organization reached this same determination based
on the currently available science, concluding that male physiological advantages
that “create risks [to female players] appear to be only minimally affected” by
testosterone suppression. (World Rugby Transgender Women Guidelines 2020.)
85. Surprisingly, so far as public information reveals, the NCAA’s
Committee on Competitive Safeguards is not monitoring and documenting instances
of transgender participation on women’s teams for purposes of injury reporting. In
practice, the NCAA is conducting an experiment which in theory predicts an increased
frequency and severity of injuries to women in contact sports, while at the same time
failing to collect the relevant data from its experiment.

44
86. In their recent guidelines, UK Sport determined that, “based upon
current evidence, testosterone suppression is unlikely to guarantee fairness between
transgender women and natal females in gender-affected sports.” (UK Sports
Councils’ Equality Group Guidance 2021 at 7.) They also warned that migration to a
scenario by NGBs where eligibility is determined through case-by-case assessment
“is unlikely to be practical nor verifiable for entry into gender-affected sports,” in part
because “many tests related to sports performance are volitional,” and incentives on
the part of those tested would align with intentional poor performance. (UK Sports
Councils’ Equality Group Guidance 2021 at 8.)
87. Despite these concerns, this appears to be exactly the route that the IOC
is taking, as reflected in their Framework on Fairness, Inclusion and Non-
Discrimination on the Basis of Gender Identity, released in November of 2021. 23 In
it, the IOC lists two disparate goals. First, that “where sports organizations elect to
issue eligibility criteria for men’s and women’s categories for a given competition, they
should do so with a view to . . . [p]roviding confidence that no athlete within a category
has an unfair and disproportionate competitive advantage . . . [and] preventing a risk
to the physical safety of other athletes.” (IOC Framework 2021 § 4.1.) At the same
time, governing bodies are not to preclude any athlete from competing until evidence
exists based upon “robust and peer-reviewed research that . . . demonstrates a
consistent, unfair, disproportionate competitive advantage in performance and/or an
23The IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender
Identity and Sex Variations is available at
https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-Inclusion-
Non-discrimination-2021.pdf?_ga=2.72651665.34591192.1645554375-759350959.1644946978
45
unpreventable risk to the physical safety of other athletes”—research moreover that
“is largely based on data collected from a demographic group that is consistent in
gender and athletic engagement with the group that the eligibility criteria aim to
regulate.” (IOC Framework 2021 § 6.1) Finally, affected athletes may appeal any
evidence-based decision-making process through a further “appropriate internal
mediation mechanism, such as a Court of Arbitration for Sport.” (IOC Framework
2021 § 6.1.) Rather than cite any of the growing evidence that testosterone
suppression cannot mitigate sex-based performance differences, the IOC’s new policy
remains aspirational and opaque, and has come into early criticism by other Sports
Medicine Federations, many of which, such as World Athletics, FINA, and the
International Cyclist Union, have since issued policy changes further restricting
biological males from participating against natal females. 24 (Pigozzi 2022.) And yet
the research relating to hormonal suppression in transgender athletes, as confirmed
by World Rugby and UK Sport, already speaks very clearly to the fact that males
retain a competitive advantage over women that cannot be eliminated through
testosterone suppression alone. What follows is a brief summary of some of these
retained differences as they relate to sport safety.
A. Bone density
World Athletics Council decides on Russia, Belarus and female eligibility | PRESS-RELEASES |
24
World Athletics
Transgender athletes | UCI
FINA Restricts Transgender Women From Competing at Elite Level - The New York Times
(nytimes.com)
46
88. I start with what is obvious and so far as I am aware undisputed—that
after the male pubertal growth spurt, suppression of testosterone does not materially
shrink bones so as to eliminate height, leverage, performance, and weight differences
that follow from simply having longer, larger bones, and being subsequently taller.
89. Bone mass (which includes both size and density) is maintained over at
least two years of testosterone suppression (Singh-Ospina 2017; Fighera 2019), and
one study found it to be preserved even over a median of 12.5 years of suppression
(Hilton 2021; Ruetsche 2005).
Size and weight
90. Males are, on average, larger, and heavier. As we have seen, these facts
alone mean that males bring more kinetic energy into collisions, and that lighter
females will suffer more abrupt deceleration in collisions with larger bodies, creating
heightened injury risk for impacted females.
91. Multiple studies have found that testosterone suppression may modestly
reduce, but does not come close to eliminating the male advantage in muscle mass
and lean body mass, which together contribute to the greater average male weight.
Studies looking at the effect of GAHT on lean mass are generally split between those
showing modest decreases, or no statistical change. (Ford 2021.) Researchers looking
at transitioning adolescents found that the weight of biological male subjects
increased rather than decreased after treatment with an antiandrogen testosterone
suppressor, with no significant loss of muscle cross-sectional area. (Tack 2018.)
Adolescent biological male subjects who were exposed to puberty-halting medications
prior to institution of testosterone suppression presented with lean body mass 2.5
47
standard deviations higher than biological girls, and maintained gains of between 1–
2 standard deviations at age 22. (Klaver 2018.) In one recent meta-analysis,
researchers looking at the musculoskeletal effects of hormonal transition found that
even after males had undergone 36 months of therapy, their lean body mass and
muscle area remained above those of females. (Harper 2021.) Another group in 2004
studied the effects of testosterone suppression to less than 1 nmol/L in men after one
or more years, but still found only a 12% total loss of muscle area by the end of thirty-
six months. (Gooren 2004.) Finally, a 2022 study comparing biological males on an
average of 14.4 years of GAHT to cisgender men and women showed that, despite
testosterone levels that were in female range, both skeletal muscle mass and
appendicular skeletal mass adjusted for height, as well as handgrip strength,
remained statistically greater than cisgender controls. Activity in this study was
controlled for, and did not differ between examined groups. (Alvares 2022)
C. Strength
92. A large number of studies have now observed minimal or no reduction
in strength in male subjects following testosterone suppression. In one recent meta-
analysis, strength loss after twelve months of hormone therapy ranged from
negligible to 7%. (Harper 2021.) Given the baseline male strength advantage in
various muscle groups of from approximately 25% to 100% above female levels that I
have noted in Section V.D above, even a 7% reduction will leave a large retained
advantage in strength. Another study looking at handgrip strength—which is a proxy
for general strength—showed a 9% loss of strength after two years of hormonal
treatment in males who were transitioning, leaving a 23% retained advantage over
48
the female baseline. (Hilton 2021.) Yet another study which found a 17% retained grip
strength advantage noted that this placed the median of the group treated with
hormone therapy in the 95th percentile for grip strength among age-matched females.
(Scharff 2019.) Researchers looking at transitioning adolescents showed no loss of
grip strength after hormone treatment. (Tack 2018.) One recent study on male Air
Force service members undergoing transition showed that they retained more than
two thirds of pretreatment performance advantage over females in sit-ups and push-
ups after between one and two years of testosterone-reducing hormonal treatment.
(Roberts 2020.) A similar study in 2022 looking at 228 biologically male, transitioning
Air Force personnel showed that these individuals retained statistical advantage over
cis-gender females up to four years for sit-ups, and indefinitely for push-ups, despite
the fact that this group started GAHT underperforming to cisgender males in push-
ups at baseline. (Chiccarelli 2022) An observational cohort study looked at thigh
strength and thigh muscle cross-sectional area in men undergoing hormonal
transition to transgender females. After one year of hormonal suppression, this group
saw only a 4% decrease in thigh muscle cross-sectional area, and a negligible decrease
in thigh muscle strength. (Wiik 2020.) Wiik and colleagues looked at isokinetic
strength measurements in individuals who had undergone at least 12 months of
hormonal transition and found that muscle strength was comparable to baseline, and
torque-generating ability actually increased, leaving transitioned males with a 50%
strength advantage over reference females. (Wiik 2020.) Finally, one cross-sectional
study that compared men who had undergone transition at least three years prior to
analysis, to age-matched, healthy males found that the transgender individuals had
49
retained enough strength that they were still outside normative values for women.
This imbalance continued to hold even after eight years of hormone suppression. The
authors also noted that since males who identify as women often have lower baseline
(i.e., before hormone treatment) muscle mass than the general population of males,
and since baseline measures for this study were unavailable, the post-transition
comparison may actually represent an overestimate of muscle mass regression in
transgender females. (Lapauw 2008; Hilton 2021.)
93. World Rugby came to the same conclusion based on its own review of the
literature, reporting that testosterone suppression “does not reverse muscle size to
female levels,” and in fact that “studies assessing [reductions in] mass, muscle mass,
and/or strength suggest that reduction in these variables range between 5% and 10%.
Given that the typical male vs female advantages range from 30% to 100%, these
reductions are small.” (World Rugby Transgender Women Guidelines 2020.)
94. It is true that most studies of change in physical characteristics or
capabilities over time after testosterone suppression involve untrained subjects
rather than athletes, or subjects with low to moderate training. It may be assumed
that all of the Air Force members who were subjects in the study I mention above
were physically fit and engaged in regular physical training. But neither that study
nor those studies looking at athletes quantify the volume or type of strength training
athletes are undergoing. The important point to make is that the only effect strength
training could have on these athletes is to counteract and reduce the limited loss of
muscle mass and strength that does otherwise occur to some extent over time with
testosterone blockade. There has been at least one study that illustrates this in
50
patients undergoing recent androgen deprivation, measuring strength during a
twelve-week period where testosterone was suppressed to levels of 2 nmol/L. During
that time, subjects actually increased leg lean mass by 4%, and total lean mass by
2%, and subject performance on the 10 rep-max leg press improved by 32%, while
their bench press performance improved by 17%. (Kvorning 2006.) Evolving data on
muscle memory in biological males may underpin this effect (Hunter 2023). Another
study of patients on chronic androgen deprivation therapy (mean 1136 days) showed
that a 20 week progressive resistance training program moving from concentric
toward eccentric load training resulted in 41% improvements in both chest press and
seated rows, and a 96% improvement in leg press. (Galvao 2006)
95. The point for safety is that superior strength enables a biological male
to apply greater force against an opponent’s body during body contact, or to throw,
hit, or kick a ball at speeds outside the ranges normally encountered in female-only
play, with the attendant increased risks of injury that I have already explained.
D. Speed
96. As to speed, the study of transitioning Air Force members found that
these males retained a 9% running speed advantage over the female control group
after one year of testosterone suppression, and their average speed had not declined
significantly farther by the end of the 2.5 year study period. (Roberts 2020.) Again, I
have already explained the implications of greater male speed on safety for females
on the field and court, particularly in combination with the greater male body weight.
51
CONCLUSION
Since the average male athlete is larger and exerts greater power than the
average female athlete in similar sports, male-female collisions will produce greater
energy at impact, and impart greater risk of injury to a female, than would occur in
most female-female collisions. Because of the well-documented physiological testing
and elite performance differences in speed and strength, as well as differences in lean
muscle mass that exist across all age ranges, the conclusions of this paper can apply
to a certain extent before, as well as during, and after puberty. We have seen that
males who have undergone hormone therapy in transition toward a female body type
nevertheless retain musculoskeletal “legacy” advantages in muscle girth, strength,
and size. We have also seen that the additive effects of these individual advantages
create multiplied advantages in terms of power, force generation and momentum on
the field of play. In contact or collision sports, sports involving projectiles, or sports
where a stick is used to strike something, the physics and physiology reviewed above
tell us that permitting male-bodied athletes to compete against, or on the same team
as females—even when undergoing testosterone suppression—must be expected to
create predictable, identifiable, substantially increased, and unequal risks of injuries
to the participating women.
Based on its independent and extensive analysis of the literature coupled with
injury modeling, World Rugby recognized the inadequacy of the International
Olympic Committee’s policy to preserve safety for female athletes in their contact
sport (the NCAA policy is even more lax in its admission of biological males into the
52
female category). Among the explicit findings of the World Rugby working group were
the following:
• Forces and inertia faced by a smaller and slower player during collisions
are significantly greater when in contact with a larger, faster player.
• Discrepancies in mass and speed (such as between two opponents in a

tackle) are significant determinants of various head and other
musculoskeletal injury risks.
• The risk of injury to females is increased by biological males’ greater

ability to exert force (strength and power), and also by females’ reduced
ability to receive or tolerate that force.
• Testosterone suppression results in only “small” reductions in the male

physiological advantages. As a result, heightened injury risks remain for
females who share the same field or court with biological males.
• These findings together predict a significant increase in injury rates for

females in rugby if males are permitted to participate based on gender
identity, with or without testosterone suppression, since the magnitude
of forces and energy transfer during collisions will increase
substantially, directly correlated to the differences in physical
attributes that exist between the biological sexes.
Summarizing their work, the authors of the World Rugby Guidelines said that,
“World Rugby’s number one stated priority is to make the game as safe as possible,
and so World Rugby cannot allow the risk to players to be increased to such an extent
by allowing people who have the force and power advantages conferred by
testosterone to play with and against those who do not.” (World Rugby Transgender
Guidelines 2020.) As my own analysis above makes clear, I agree with the concerns
of UK Sport and the conclusions of World Rugby regarding risk to female athletes.
Importantly, I also agree that it must be a high priority for sports governing bodies
(and other regulatory or governmental bodies governing sports) to make each sport
as safe as reasonably possible. And in my view, medical practitioners with expertise
53
in this area have an obligation to advocate for science-based policies that promote
safety.
The performance advantages retained by males who participate in women’s
sports based on gender identity are readily recognized by the public. When an NCAA
hurdler who ranked 200th while running in the collegiate male division transitions
and immediately leaps to a number one ranking in the women’s division; 25 when a
high school male sprinter who ranked 181st in the state running in the boys’ division
transitions and likewise takes first place in the girls’ division (DeVarona 2021), when
a biologically-male collegiate swimmer transitions and moves from 65th place in the
men’s 500 m event, to NCAA champion in the women’s 500 meter race, (Senefeld,
JW., 2023) the problem of fairness and equal opportunities for girls and women is
immediately apparent, and indeed this problem is being widely discussed today in the
media.
The causes of sports injuries, however, are multivariate and not always as
immediately apparent. While, as I have noted, some biological males have indeed
competed in a variety of girls’ and women’s contact sports, the numbers up till now
have been small. But recent studies have reported very large increases in the number
of children and young people identifying as transgender compared to historical
experience. For example, an extensive survey of 9th and 11th graders in Minnesota
found that 2.7% identified as transgender or gender-nonconforming—well over 100
25 https://en.wikipedia.org/wiki/Cece_Telfer (accessed 6/20/21)
54
times historical rates (Rider 2018), and many other sources likewise report this trend.
(Johns 2017; Herman 2017.)
Faced with this rapid social change, it is my view as a medical doctor that
policymakers have an important and pressing duty not to wait while avoidable
injuries are inflicted on girls and women, but instead to proactively establish policies
governing participation of biological males in female athletics that give proper and
scientifically-based priority to safety in sport for these girls and women. Separating
participants in contact sports based on biological sex preserves competitive equity,
but also promotes the safety of female athletes by protecting them from predictable
and preventable injury. Otherwise, the hard science that I have reviewed in this white
paper leaves little doubt that eligibility policies based on ideology or gender identity
rather than science, will, over time, result in increased, and more serious, injuries to
girls and women who are forced to compete against biologically male transgender
athletes. When basic science and physiology both predict increased injury, then
leagues, policy-makers, and legislators have a responsibility to act to protect girls and
women before they get hurt.
Chad Carlson, M.D., FACSM

Stadia Sports Medicine
West Des Moines, Iowa
Past-President, AMSSM
55
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DISTRICT OF VERMONT

and K. S., by and through their parents and Case No. 2:23-cv-652.
DECLARATION OF VICKY FOGG IN
Plaintiffs, SUPPORT OF PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
v.

Association,
Defendants.
I, Vicky Fogg, hereby declare as follows:
1. I am a citizen of the United States and a resident of the state of Vermont. I am
competent to make this declaration, and I make this declaration based on my personal
knowledge.
2. I am the Head of School of Mid Vermont Christian School in Quechee, Vermont. I
have held this position since July 1, 2019.
3. As Head of School, I am responsible for general oversight of all of the School’s
operations, including enrollment decisions, academics, and athletics.
4. Mid Vermont Christian School (“Mid Vermont Christian” or “School”) is a private,
Christian, pre-K through 12th grade school located in Quechee, Vermont. It was founded in
1987.
5. Mid Vermont Christian holds sincere religious beliefs that drive and form the
foundation for everything it does, including academics and athletics.
6. Mid Vermont Christian’s sincerely held religious beliefs are rooted in the Holy Bible,
which Mid Vermont Christian believes is inspired by God and is the authority on all issues of
faith and life.
7. The School believes that everything the Bible says is true, fact, and not debatable.
8. Mid Vermont Christian holds sincere religious beliefs on biblical marriage, sexuality,
and gender. Those beliefs include:
• that God wonderfully and immutably creates each person as male or female;
• that rejection of one’s biological sex is a rejection of the image of God within that
person;
• that the term marriage has only one meaning—the uniting of one man and one
woman in a single, exclusive union, as delineated in Scripture; and
1
• that God intends sexual intimacy to occur only between a man and a woman who are
married to each other.
The School speaks on these topics and communicates that sex is based on biology,
unchangeable, and predetermined by God.
9. Mid Vermont Christian also sincerely believes that every person must be afforded
compassion, love, kindness, respect, and dignity and treated with the love of Christ, regardless of
their beliefs.
10. Mid Vermont Christian sincerely believes it must holistically educate its students in
and through a biblical worldview, teaching them to love and serve God above all else and to
spread His Gospel and teachings.
11. At Mid Vermont Christian, “God is central to all knowledge and learning.” A true and
accurate copy of Mid Vermont Christian’s website pages is attached as Exhibit 1 to the Verified
Complaint (“VC”).
12. The School’s purpose is “to glorify God by preparing each student for college, career,
and Christian ministry through a program of academic excellence established in Biblical truth.”
Id. at 2.
13. “The Word of God is integrated into each classroom and each subject” and Mid
Vermont Christian seeks to prepare its graduates “to continue to grow in their personal
relationship with Jesus Christ, going out into the world to serve Him with all their intelligence,
skills, and being.” Id. at 17, 22.
14. Mid Vermont Christian exercises these religious beliefs by engaging in religious
education. This means the School inculcates biblical truths through everything it does—from
academics to athletics and everything in between. It teaches these truths not only by focusing on
them in the classroom, but also by exemplifying them to its students and the world.
15. So anything that would hinder or undermine the School’s religious education would
infringe the School’s religious exercise.
2
16. As a result, the School will not facilitate or attend any event that would undermine or
cause its students and families to question the very beliefs it professes.
17. Mid Vermont Christian’s religious beliefs—including its beliefs on marriage,
sexuality, and gender—guide all aspects of the school’s operation, as demonstrated by the
school’s rules and policies.
18. Mid Vermont Christian requires that all employees be coreligionists; that is, they
must agree with and abide by all of Mid Vermont Christian’s religious beliefs, including those on
biblical marriage, sexuality, and gender.

19. Mid Vermont Christian requires at least one parent of each student to be a Christian
who agrees with the School’s religious beliefs.
20. Mid Vermont Christian’s religious beliefs on marriage, sexuality, and gender also
dictate the School’s policies on restrooms/locker rooms, pronoun usage, dress codes, and athletic
teams. That means these policies are based on biological sex, not purported gender “identities.”
21. Mid Vermont Christian also believes that forcing its sports teams to compete against
a boy who identifies as a girl on a girls’ sports team (or a girl who identifies as a boy on a boys’
sports team) would be affirming that sex is mutable, in violation of its beliefs.
22. And Mid Vermont Christian believes that engaging in such competition would cause
it to be complicit in furthering the falsity that sex is mutable, in violation of its beliefs.
MID VERMONT CHRISTIAN’S EXCLUSION FROM PUBLIC BENEFITS
23. Under Vermont’s Town Tuitioning Program, public school districts that do not
operate public high schools must use public funds to pay for students residing in the district to
attend independent schools or public schools in other districts.
24. The Town Tuitioning Program (the “Program”) is administered by school boards of
the individual local school districts, but ultimate oversight authority lies with the Vermont State
Board of Education (“Board”) and Agency of Education (“Agency”).
3
25. In order to participate in the Program, a private school must be an “approved
independent school.”
26. On the other hand, “recognized independent schools” can provide elementary or
secondary education in the State, but they cannot receive public tuition and cannot participate in
the Program.
27. The Board determines whether a school meets the requirements to be an “approved
independent school.”
28. A school can be approved by the Board as “an approved independent school
ineligible to receive public funds” if it meets all of the Board’s requirements, except for the
Board’s rules concerning the delivery of special education services.
29. Mid Vermont Christian School satisfies the Board’s rules concerning the delivery of
special education services and is ready, willing, and able to comply with the Board’s
requirements regarding special education requirements.
30. Vermont’s Dual Enrollment Program similarly permits students in grades 11 or 12 to
take up to two postsecondary courses while still in high school and neither the student nor the
student’s parent or guardian shall be required to pay tuition.
31. Students who want to participate in Dual Enrollment must either attend a public
school, be home-schooled, or attend an approved independent school.
32. Up until 2021, religious schools like Mid Vermont Christian were categorically
excluded from participating in the Program.
33. I am aware of several lawsuits that were filed against the Agency and local school
districts for refusing to pay private religious schools Town Tuitioning funds.
34. I am also aware that those lawsuits ultimately resulted in a federal court ordering the
State to allow religious schools to participate in the Program on an equal basis with secular
schools.
4
35. I am further aware that Maine had a public tuition program very similar to Vermont’s
Program and that religious schools in Maine sued the state for being excluded from that program.
That case, called Carson v. Makin, was decided by the United States Supreme Court in 2022.
The Supreme Court ruled that Maine’s exclusion of religious schools from its program was
unconstitutional.
36. As a result, then Secretary of Education Daniel French advised local school
superintendents that they could “not deny tuition payments to religious approved independent
schools or religious independent schools that meet educational quality standards.” A true and
accurate copy of Secretary French’s memo is attached as Exhibit 4 to the Verified Complaint.
37. Mid Vermont Christian was able to participate in the Program and did so as an
approved independent school for the 2022-23 school year. The School received tuition payments
for four students who resided in public school districts.
38. But last year, the Agency amended state regulations under Rule 2200 that changed the
requirements for schools to become “approved independent schools.”
39. To obtain “approved independent school” status, schools were required to agree to
comply with the Vermont Public Accommodations Act and the Vermont Fair Employment
Practices Act.
40. Specifically, schools applying for initial approval or renewal as approved independent
schools had to provide in their application:

• “(1) A statement of nondiscrimination, posted on the school’s website and included in the
school’s application materials, that is consistent with the Vermont Public
Accommodations Act . . . and the Vermont Fair Employment Practices Act”; and
• “(2) An assurance, signed by the Head of School, that the school complies with the
Vermont Public Accommodations Act in all aspects of the school’s admissions and
operations.”
7-1 Vt. Code R. § 3:2226.6.
5
41. So the Agency asked schools seeking “initial approval or renewal of approval” as an
independent school to “affirm compliance with Rule 2200 provisions that were not in effect at
the time of the application.” A true and accurate copy of the Addendum for Independent School
Application (“Addendum”), which the Agency required Mid Vermont Christian to submit, is
attached as Exhibit 5 to the Verified Complaint.
42. The Addendum required Mid Vermont Christian to assure that it complies with the
Vermont Public Accommodations Act (Title 9 Vermont Statutes Annotated, Chapter 141) in all
aspects of the school's admissions and operations.

43. The Vermont Public Accommodations Act provides that “[a]n owner or operator of a
place of public accommodation ... shall not, because of the ... marital status, sex, sexual
orientation, or gender identity of any person, refuse, withhold from, or deny to that person any of
the accommodations, advantages, facilities, and privileges of the place of public
accommodation.” 9 V.S.A. § 4502(a).
44. And the Vermont Fair Employment Practices Act prohibits, among other things,
employers from discriminating against employees or potential employees “because of ... religion
... sexual orientation, [and] gender identity.” 21 V.S.A. § 495.
45. Because those laws, and thus Rule 2200, prohibit religious, sexual orientation, and
gender identity discrimination, to be an “approved independent school,” the School would have
had to agree to hire those who do not share its faith; would not be able to enforce its internal
policies on restrooms, pronoun usage, dress codes, and athletics based on biology; and could not
require students’ parents to agree with the School’s religious beliefs.
46. To clarify that Mid Vermont Christian would continue to adhere to its religious
beliefs and practices, I signed the addendum on behalf of the School, but with the following
amendment:
The Mid Vermont Christian School is signing this form with the
understanding that it must be read consistent with existing law and the U.S.
and Vermont Constitutions. As a religious organization, the school has a
statutory and constitutional right to make decisions based on its religious
6
beliefs, including hiring and disciplining employees, associating with

others, and in its admissions, conduct, and operations policies and
procedures. By signing this form, the Mid Vermont Christian School does
not waive any such rights. To the extent Rule 2200’s requirements conflict
with any of the school’s beliefs, including on marriage and sexuality, the
school has not included that language in its handbook or online, nor can it
affirm that particular aspect of the Vermont Public Accommodations Act.
47. The purpose of my amendment was to request an exemption from those parts of Rule
2200 that conflicted with the School’s religious practices.
48. After receiving Mid Vermont Christian’s Addendum, then Secretary Daniel French
sent the State Board of Education a memorandum concerning Mid Vermont Christian School’s
addendum. Secretary French recommended that Mid Vermont Christian be given until the next
State Board meeting to comply in full or be denied approval. Attached as Exhibit 1 to Plaintiffs’
Motion for Preliminary Injunction is a true and accurate copy of that memorandum along with
the board minutes.
49. In response, I sent a letter to the State Board of Education explaining the
inapplicability of the Vermont Public Accommodations Act and why I included the amendment
language on the assurance form. Attached as Exhibit 2 to Plaintiffs’ Motion for Preliminary
Injunction is a true and accurate copy of my letter to the State Board of Education.
50. Upon receipt of that letter, the State Board then informed Mid Vermont Christian that
it was not going to take further action on its requested approval. Attached as Exhibit 3 to
Plaintiffs’ Motion for Preliminary Injunction is a true and accurate copy of that email from the
State Board of Education to me.
51. The Board’s and Agency’s inaction denied Mid Vermont Christian “approved
independent school” status.
52. I was sent a memorandum dated April 24, 2023, from the Agency titled “Recognized
Independent School Contacts.” That memorandum stated in part: “Enclosed is the information
required annually to continue your school’s recognized independent school status, pursuant to 16
7
V.S.A. §166(c).” Attached as Exhibit 4 to Plaintiffs’ Motion for Preliminary Injunction is a true
and accurate copy of that email from the Agency and the included memorandum.
53. In Vermont, a school must at least be “recognized” to continue operating.
54. On August 3, 2023, I received an email from the Agency stating that it “considers
[Mid Vermont Christian] for 2023-24 to be a Recognized Independent School.” A true and
accurate copy of that email is attached as Exhibit 6 to the Verified Complaint.
55. The Agency refused to renew Mid Vermont Christian’s status as an “approved
independent school” because Mid Vermont Christian’s religious beliefs and practices prevented
it from agreeing to comply in full with Rule 2200.
56. So Mid Vermont Christian is classified as a “recognized independent school” for this
school year, which means the School and the families that go here are not eligible for the
Program and cannot receive Town Tuitioning funds, nor can they participate in the Dual
Enrollment Program or other public benefit programs in the state.
57. Mid Vermont Christian satisfies all other conditions and requirements necessary to
obtain approved independent school status.
58. In September 2023, Hartland School Board sent a check to the School for the tuition
payment of T.S. because the Slarves reside within the Hartland School District but T.S. attends
Mid Vermont Christian.
59. Also in September 2023, Waits River Valley (Unified #36 Elementary) School Board
sent a check to the School for the tuition payment of two students who resided within the Waits
River Valley (Unified #36 Elementary) School District but attended Mid Vermont Christian.
60. Because the Agency had informed me that the School was classified as a “recognized
independent school” for this school year, I was confused as to why the local school districts sent
the Mid Vermont Christian tuition money.
61. So I emailed those districts and informed them that the Agency considered Mid
Vermont Christian to be a “recognized independent school” and that as such, I was surprised to
8
receive the funds. I stated that I needed clarity on Mid Vermont Christian’s school status and
until I received clarity, that I would set the funds aside.
62. In response, both districts’ respective superintendents requested those funds back
until they received “clear guidance from the [Agency] on this matter.” True and accurate copies
of those exchanges are attached as Exhibit 7 and Exhibit 8 to the Verified Complaint.
63. I complied and sent those funds back.
64. To my knowledge, the Agency never responded to the local school districts.
65. The Agency never provided further information to the School.

66. The School has not received any additional tuition payments since I was asked to
return the funds sent in September 2023.
67. As of today, the School is not receiving funds under the Program and has been
excluded from participating in the Program.
68. No current students at the School, including T.S. or K.S. are currently having their
tuition paid via the Program.
69. The School is not currently forcing the Slarves—or other families who should be able
to participate in the Program—to pay tuition out of their own pockets to stay enrolled at Mid
Vermont Christian.
70. However, this hurts the School in other areas and requires the School to set aside
funds it would otherwise spend on other resources.

71. In addition, Mid Vermont Christian has at least one student who sought to participate
in the Dual Enrollment Program but could not because Mid Vermont Christian is not an
“approved independent school.”
72. That student is otherwise eligible and satisfies all requirements to participate in the
Dual Enrollment Program, apart from the fact that Mid Vermont Christian has not been approved
as an independent school.
9
73. That student could not participate in the Dual Enrollment Program because Mid
Vermont Christian is not an “approved independent school.”
74. Instead, Mid Vermont Christian covered the tuition cost for that student to take
postsecondary courses at an out-of-state university.
75. The School is being harmed each day it cannot participate in the Town Tuitioning or
Dual Enrollment programs.
MID VERMONT CHRISTIAN’S EXCLUSION FROM STATE ATHLETICS
76. The Vermont Principals’ Association (“VPA”) an association of Vermont schools and
school leaders that oversees sports and other activities in Vermont for its 270 member schools.
77. The VPA is the only sports association that includes both public and private middle
and high schools in Vermont.
78. The VPA is the only viable option for the School to compete in Vermont-specific
high school and middle school sports.
79. The VPA’s “Commitment to Racial, Gender-Fair, and Disability Awareness” policy
states that the VPA and its member schools “are committed to creating an environment in our
activities and programs that promotes respect for and appreciation of racial, gender, sexual
orientation, religious and ethnic differences, and is disability aware.” See VC. Ex. 9 § 1.
80. The VPA’s “Policy on Gender Identity” also states that “[t]he VPA is committed to
providing all students with the opportunity to participate in VPA activities in a manner consistent
with their gender identity.” Id. § 2.
81. This policy is based on “the Vermont Agency of Education Best Practices For
Schools For Transgender and Gender Nonconforming Students” (see VC. Ex. 3) and the
Vermont Public Accommodations Act. Id.
82. That VPA policy prohibits “discrimination based on a student’s actual or perceived
sex and gender.” Id.
10
83. The VPA defines “gender identity” as “an individual’s actual or perceived gender
identity ... regardless of the individual’s assigned sex at birth.” Id.
84. The VPA also enforces the Vermont Public Accommodations Act against member
schools, and compliance with the Vermont Public Accommodations Act is a requisite for
membership. See id. (pointing to the Vermont Public Accommodations Act as prohibiting
discrimination, including “based on a student’s actual or perceived sex and gender.”).
85. The VPA policies also require that sports seasons be scheduled to “maximize gender
equity.” Id. § 26.

86. Collectively, these VPA policies are referred to as the VPA’s “gender identity
policies.”
87. The VPA also has a “boys/girls fairness policy” that provides, in part:
Interscholastic athletics involving mixed (boys/girls) competition is prohibited
except in those instances where the member school does not offer equivalent
(same) activities for girls. ...
Therefore, boys shall not try out for traditional girls' sports and be eligible for
state competition. For purposes of this policy, the following activities are
identified as girl’s sports: field hockey, softball, girls soccer, girls basketball, girls
golf, girls gymnastics, girls hockey, girls lacrosse, girls alpine and nordic skiing,
girls tennis, girls track and field, girls snowboarding, girls volleyball and girls
ultimate. This policy recognizes traditional boys-dominated sports and the need
to protect opportunities for girl athletes.
Id. § 16.11 (emphasis added).
88. Despite the VPA’s boys/girls fairness policy, the VPA allows biological males to
compete in girls’ sporting events under the VPA’s gender identity policies.
89. The VPA’s gender identity policies thus conflict with its boys/girls fairness policy.
90. The only way to reconcile the two policies is for the VPA to believe that biological
boys who “identify” as female are, in fact, females, and thus their competition in girls’ sports
does not violate the VPA’s boys/girls fairness policy.
11
91. VPA’s gender identity policies require: (1) Mid Vermont Christian to assign athletes
to its own athletic teams based on the athletes’ chosen gender identity (rather than biological
sex); and (2) Mid Vermont Christian’s girls’ athletic teams to compete against biological males,
despite the VPA’s boys/girls fairness policy.
92. Forcing Mid Vermont Christian and its students to do these things violates their
religious beliefs and exercise.
93. The Mid Vermont Christian girls’ 2022-2023 varsity basketball team was scheduled
to compete in the 2023 VPA Division 4 Girls’ State Basketball Tournament.

94. The first-round playoff opponent for Mid Vermont Christian was the Long Trail
School in Dorset, Vermont.
95. Due to the VPA’s gender identity policies, a biological male at Long Trail was
permitted to compete in VPA high school girls’ basketball games during the 2022-2023 season.
The male was over six feet tall.
96. Concerned about the situation, the apparent violation of the VPA’s boys/girls fairness
policy, and the safety of our female athletes, I contacted the VPA to discuss the game against
Long Trail.
97. I explained to the VPA that I—along with our coach and student-athletes—were
concerned about playing against a biological boy due to the inherent differences between males
and females and the underlying safety issues it posed to our girls.
98. These concerns about fairness and safety are rooted in and bound up with the
School’s religious beliefs about sex and gender. In other words, the School believes that God
created males and females differently, each with their own unique characteristics. Those
characteristics include the well-known fact that males, on average, are bigger, faster, stronger,
and better equipped to engage in intense physicality. On the other hand, women have
characteristics that men cannot match. Indeed, God created woman to complement man, and the
two united together become one. See Genesis 1:18–25.
12
99. So the School believes and teaches that boys and girls should not be involved in
inappropriate physical contact, including subjecting girls to competitive athletic competition
against biological boys.
100. Put differently, the reason girls’ sports exist is because of these very innate biological
differences—so the School’s concerns about playing the biological male at Long Trail derived
directly from its religious belief that girls are girls, boys are boys, and this cannot be changed.
101. I requested that the VPA discuss the situation with myself and the School’s athletic
director. Attached as Exhibit 5 to Plaintiffs’ Motion for Preliminary Injunction is a true and
accurate copy of my letter on behalf of the Mid Vermont Christian to the VPA.
102. In response to Mid Vermont Christian’s concerns, the VPA stated it would not honor
Mid Vermont Christian’s request because doing so would violate the Vermont Public
Accommodations Act, the Agency of Education’s Best Practices For Schools Regarding
Transgender And Gender Nonconforming Students, and the VPA’s gender identity policies.
Attached as Exhibit 6 to Plaintiffs’ Motion for Preliminary Injunction is a true and accurate copy
of the email from the VPA to me.
103. Forcing our girls’ team to compete against a biological boy in girls’ basketball would
unquestionably undermine the School’s belief that boys cannot be girls. The School will not
facilitate a girls’ sporting event that includes biological boys because that furthers a false idea of
reality that contradicts the School’s religious belief. So the School elected to forfeit that game.
104. In response, the VPA made “an immediate determination of ineligibility” and
expelled Mid Vermont Christian from the Association, penalizing the School for its religious
beliefs about sex and gender. See VC, Ex. 10.
105. The VPA’s termination letter to Mid Vermont Christian stated that the school violated
the VPA’s gender identity policies, which were “aligned with Vermont state law”—which meant
the Vermont Public Accommodations Act. Id.
13
106. As a result, the VPA barred Mid Vermont Christian and all of its students from
competing in any VPA sports or activities, not just girls’ basketball.
107. On multiple prior occasions, other Vermont schools have forfeited VPA-sponsored
athletic events without any apparent repercussions from the VPA. See Mawson, Michael,
Spaulding football forfeits Friday night’s game against Mount Anthony, Bennington Banner,
(Sept. 9, 2022), https://perma.cc/E2PG-HF8A; Abrami, Alex, Vermont high school football:
Missisquoi forced to forfeit game, Burlington Free Press, (Sept. 14, 2018),
https://perma.cc/FLB4-84R8. That includes at least three instances of schools forfeiting due to

their refusal to play against a player with a COVID-19 exemption. See Danforth, Austin, Nobody
would play Woodstock—until a policy change allowed Hartford to step up, Burlington Free
Press, (Feb. 25, 2021), https://perma.cc/MQ6C-DSW5. In fact, VPA policies require a team to
forfeit in certain situations, like when a team’s coach cannot continue an event or when a school
cancels a sport. See VPA Athletic Policies §§ 19, 29, a true and accurate copy of which is
attached to the Verified Complaint as Exhibit 9. But in those situations, the VPA would not expel
those teams who must forfeit from the entire association.
108. On February 22, 2023, while commenting on a potential bill that could impact the
Town Tuitioning Program during a Vermont House Education Committee hearing, Defendant
Nichols showed hostility toward Mid Vermont Christian’s religious beliefs. Nichols criticized
Mid Vermont Christian for allegedly supporting “blatant discrimination under the guise of
religious freedom.” Jay Nichols Testimony re. H.258 at 2, a true and accurate copy of which was
attached as Exhibit 11 to the Verified Complaint.
109. In March 2023, the VPA sent a letter to Mid Vermont Christian reiterating that the
School’s religious beliefs and practices did not meet the expectations of its gender identity
policies and that the school was ineligible to participate in VPA activities going forward.
14
110. Following the decision, Defendant Nichols said “[i]f you don’t want to follow VPA
rules, that’s fine. ... But then you’re just not a VPA member. It’s fairly simple. That’s really all
we’re gonna really say about it.”1
111. Despite Mid Vermont Christian raising its concerns with the VPA prior to the playoff
game, the VPA falsely told the media that it first learned of the School’s rationale for forfeiting
the game through the School’s statement to Valley News.
112. The VPA also inaccurately told the media that the VPA offers no appeals process for
schools that are barred from VPA sporting events.

113. Rather than engage in a conversation with Mid Vermont Christian, as the School
requested, the VPA immediately expelled Mid Vermont Christian from all VPA activities and
publicly mocked its beliefs while testifying before the Vermont House.
114. On top of that, by immediately expelling Mid Vermont Christian from the VPA, the
VPA failed to follow its own disciplinary action procedures, including the necessity of
submitting a written notice of probable violation.
115. On March 19, 2023, Mid Vermont Christian explained to the VPA that it had failed to
follow its own procedures for discipline. The School also reiterated its objection to forcing its
female athletes to compete against biological males, and further detailed that this was rooted in
its religious beliefs about male and female. Attached as Exhibit 7 to Plaintiffs’ Motion for
Preliminary Injunction is a true and accurate copy of that letter to the VPA.
116. When Mid Vermont Christian sought an appeal, the VPA’s Activities Committee had
to inform Defendant Nichols how to hold and conduct a proper appeal procedure.
117. After finally allowing Mid Vermont Christian to move through the appeals process,
the School underscored its religious objections and concerns to the VPA’s gender identity
1
Peter D’Auria, Vermont religious school that refused to play team with trans player banned
from sporting events, VTDigger (Mar. 13, 2023), https://vtdigger.org/2023/03/13/vermont-
religious-school-that-refused-to-play-team-with-trans-player-banned-from-sporting-
events/ [https://perma.cc/3LU5-2TY4].
15
policies. Attached as Exhibit 8 to Plaintiffs’ Motion for Preliminary Injunction is a true and
accurate copy of Mid Vermont Christian’s appeal letter to the VPA.
118. At no point during the appeal process did the VPA seriously consider Mid Vermont
Christian’s religious beliefs, exercise, and objections.
119. The VPA’s Activity Standards Committee eventually held a hearing on Mid Vermont
Christian’s appeal. The Committee is comprised of nine VPA members, all of whom represent
public schools.
120. The Activity Standards Committee unanimously denied Mid Vermont Christian’s
appeal and upheld the VPA’s “penalty of expulsion,” saying “[t]his case has nothing to do with
beliefs.” Attached as Exhibit 9 to Plaintiffs’ Motion for Preliminary Injunction is a true and
accurate copy of the VPA’s decision.
121. The VPA also told Mid Vermont Christian that “[i]t is a myth that transgender
students endanger others when they participate in high school sports or create unfair
competition.” Id.
122. The VPA flatly concluded that Mid Vermont Christian’s religious concerns were
“wrong.” Id.
123. The VPA’s denial, and its failure to seriously consider Mid Vermont Christian’s
concerns, showed complete hostility toward the School’s religious beliefs.
124. As of today, Mid Vermont Christian and its students remain expelled from the VPA
and unable to compete in VPA middle school and high school athletics and other VPA activities.
125. Instead, Mid Vermont is currently competing in the New England Association of
Christian Schools.
126. The New England Association of Christian Schools (“NEACS”) contains members in
Connecticut, Rhode Island, New Hampshire, Vermont, and Massachusetts.
127. The closest school to Mid Vermont in the NEACS is in Concord, New Hampshire,
over one hour away.
16
128. The School incurs significant time and expense in traveling further away to play
schools within the NEACS.
129. The VPA’s decision to exclude Mid Vermont Christian from all VPA activities has
had a substantial and ongoing impact on Mid Vermont Christian, its students, and its families.
130. The VPA controls Vermont’s school athletic activities, and its decision prevents other
member schools from playing in sports with Mid Vermont Christian.
131. Although Mid Vermont Christian previously participated in the VPA’s “Member-to-
Member Program,” it is no longer able to do so based on its exclusion from the VPA. At least
one male Mid Vermont Christian student was unable to play baseball last season as a result. And
this school year, a female athlete at Mid Vermont Christian was denied the opportunity to play
soccer with her local public school’s soccer team as a result. Bielawski, VPA ban on transgender
protest harms all students, Christian principal says, Vermont Daily Chronicle, (Sept. 13, 2023),
https://perma.cc/6MHL-98LK.
132. And it's not just Mid Vermont Christian, its students, and its families that are harmed.
Students at public schools have been impacted as well. For example, some students at
Woodstock Union were interested in joining Mid Vermont Christian’s girls’ volleyball team this
fall because Woodstock Union did not have a team. But those girls could not participate because
Mid Vermont Christian was excluded from the VPA.
133. After missing out on spring 2023 sports and activities as well as the increased time
and expense of traveling to NEACS for competition, Mid Vermont decided to reapply for
membership in the VPA.
134. During the fall of 2023, Mid Vermont Christian asked the VPA how it could reapply
for school membership in the VPA and requested any required forms as suggested by the VPA’s
website. Attached as Exhibit 10 to Plaintiffs’ Motion for Preliminary Injunction is a true and
accurate copy of my email request to the VPA.
17
135. In response to Mid Vermont Christian’s request, the VPA pointed the School back to
its prior expulsion decision and asked how the School would comply with the gender identity
policies. Attached as Exhibit 11 to Plaintiffs’ Motion for Preliminary Injunction is a true and
accurate copy of Jay Nichols’ email response to my request.
18

DISTRICT OF VERMONT

JOINT DECLARATION OF NATHANIEL
Plaintiffs, AND DAWNA SLARVE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
v. PRELIMINARY INJUNCTION

Association,
Defendants.
We, Nathaniel Slarve and Dawna Slarve, hereby jointly declare as follows:
1. We are citizens of the United States and residents of the state of Vermont. We are
competent to make this declaration, and we make this declaration based on our personal
knowledge.
2. We are the parents of Plaintiffs K.S. and T.S. Both currently attend Mid Vermont
Christian School.
3. Our son, T.S., is in tenth grade and a member of Mid Vermont Christian’s varsity
boys’ basketball team. T.S. is now in his third year at Mid Vermont Christian School.
4. Our daughter, K.S., is in eighth grade and just completed her most recent season of
volleyball at Mid Vermont Christian. K.S. is likewise in her third year at Mid Vermont Christian
School.
5. Both T.S. and K.S. desire to play sports on behalf of Mid Vermont Christian in the
Vermont Principals Association.
6. We choose to send our children to Mid Vermont Christian School because it is a
Christian school that teaches its students from a biblical worldview. We both share Mid Vermont
Christian’s religious beliefs and desire that our children receive a holistic religious education in
line with our own beliefs.
7. We, along with our children, share Mid Vermont Christian’s belief that God
immutably creates each person as either male or female and that this cannot be changed.
8. We, along with our children, believe God created each sex with unique characteristics
and abilities and this includes the fact that males, on average, are bigger, faster, stronger, and
better equipped to engage in intense physicality.
9. As such, we believe that girls’ sports reserved exclusively for biological girls, and
boys’ sports reserved exclusively for biological boys, reflect God’s distinctive creation.
1
10. We therefore believe that because of the inherent physical differences between
biological males and females (due to God’s design), it is unfair and threatens the safety of
biological girls to be forced to compete in athletics against biological boys.
11. We believe that forcing K.S. to compete against (or on the same team as) a boy who
identifies as a girl in girls’ volleyball would make us complicit in furthering the falsity that sex is
changeable and would thus undermine our religious beliefs.
12. Likewise, we believe that forcing T.S. to compete against (or on the same team as) a
girl who identifies as a boy in boys’ basketball would make us complicit in furthering the falsity
that sex is changeable and would thus undermine our religious beliefs.
13. We currently live in North Hartland, Vermont.
14. We live within the Hartland School District.
15. The Hartland School District does not operate a public high school.
16. Last school year, we participated in Vermont’s Town Tuitioning Program by having
the Hartland School District pay tuition for T.S.
17. For the 2023-24 school year, we sought to participate in Vermont’s Town Tuitioning
Program by having the Hartland School District pay tuition for T.S.
18. Per that Program, the Hartland School District is obligated to pay tuition for T.S. at
another public high school or at an approved independent school.
19. During the summer of 2023, we sent the required paperwork to Hartland School
District so that T.S. could receive tuition money to attend Mid Vermont Christian.
20. In September 2023, Hartland School District sent Mid Vermont Christian a check for
tuition payment for T.S.
21. However, we learned this fall that Mid Vermont Christian had not been approved by
the State Board of Education as an approved independent school and that, therefore, the School
could not participate in the Town Tuitioning Program.
2
22. As a result, we learned that Hartland School District requested the tuition check be
returned.
23. We are aware that Mid Vermont Christian complied and returned the tuition check.
24. As to our knowledge, Hartland School District has not made any other tuition
payments on behalf of T.S.
25. So T.S. is not currently benefitting from the Town Tuitioning Program because he
goes to Mid Vermont Christian.
26. We cannot afford tuition for both K.S. and T.S. at Mid Vermont Christian without
tuition assistance through the Town Tuitioning Program.
27. In addition, we are aware that Mid Vermont Christian has been expelled from the
state’s athletic association: the Vermont Principal’s Association (“VPA”).
28. We are also aware that as a result of not being able to play in the VPA, Mid Vermont
Christian has had to join the New England Association of Christian Schools (“NEACS”) which
contains members across five different states.
29. Now, T.S. must travel much further for away basketball games than he would have
had Mid Vermont Christian remained in the VPA.
30. And T.S. is also unable to compete in Vermont state tournaments, cannot compete for
state championships, and cannot achieve accolades he otherwise would be eligible for if Mid
Vermont Christian was competing in the VPA.

31. T.S. is thus being harmed by not being able to compete in the VPA. Our daughter,
K.S., is likewise dealing with the same harm.
32. And we are being harmed by not being able to reap the benefits of the Town
Tuitioning Program.
33. We are being penalized for choosing to send our children to Mid Vermont Christian
School. Our children do not receive the same extracurricular opportunities and public benefits
they would receive if we had sent them to a different school.
3
I hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing
is true and correct to the best of my knowledge.
Executed this 11th day of December, 2023, in North Hartland, Vermont.
Nathaniel Slarve
4
I hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing
is true and correct to the best of my knowledge.
Executed this 11th day of December, 2023, in North Hartland, Vermont.
Dawna Slarve
5

DISTRICT OF VERMONT

DECLARATION OF CHRISTOPHER
Plaintiffs, GOODWIN IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY
v. INJUNCTION

Association,
Defendants.
I, Christopher Goodwin, hereby declare as follows:
competent to make this declaration and make it based on my personal knowledge.
2. My wife, Bethany Goodwin, and I are the parents of Plaintiffs A.G. and M.G. Both
are currently enrolled at Mid Vermont Christian School.
3. Our son, A.G., is a senior in high school and a member of Mid Vermont Christian’s
varsity boys’ basketball and track teams.
4. Our daughter, M.G., is in eighth grade and a member of Mid Vermont Christian’s
varsity girls’ basketball team. At Mid Vermont Christian and other schools in the Vermont
Principals Association, eighth graders are eligible to play on high school varsity teams when the
school does not have enough high school students to form a full team.
5. M.G. and A.G. desire to continue competing on Mid Vermont Christian’s athletic
teams and likewise desire to compete in activities sponsored by the Vermont Principals
Association.
6. I am also the head coach of Mid Vermont Christian’s varsity girls’ basketball team. I
have been the head coach since 2015.
7. My wife and I choose to send our children to Mid Vermont Christian School because
the School is a Christian school that teaches its students from a biblical worldview. We both
share Mid Vermont Christian’s religious beliefs and desire that our children receive a holistic
religious education in line with our own beliefs.
1
biological girls to be forced to compete with and against in athletics against biological boys.
12. We believe that forcing M.G. to compete against (or on the same team as) a boy who
identifies as a girl in girls’ basketball would make us complicit in furthering the falsity that sex is

13. Likewise, we believe that forcing A.G. to compete against (or on the same team as) a
girl who identifies as a boy in boys’ basketball or track would make us complicit in furthering
the falsity that sex is changeable and would thus undermine our religious beliefs.
14. We believe forcing M.G. to compete against (or on the same team as) a boy who
identifies as a girl in girls’ basketball threatens her safety, is fundamentally unfair, and ignores
God’s purposeful design, in violation of our religious beliefs.
15. As head basketball coach of Mid Vermont Christian’s girls’ basketball team, I am
well aware of the Vermont Principals’ Association’s athletic policies, including its policy on
fairness that claims to prohibit males from competing in girls’ athletics.
16. I am also very familiar with the physical demands of competitive high school girls’
basketball. I know firsthand that high school girls’ basketball can be very intense and often
involves heavy contact between the players.
17. For example, I have witnessed injuries in basketball games due to jump ball tie-ups,
elbows thrown while rebounding, fouls driving to the basket, and screens being set, among
others.
18. In my experience, allowing a 14-18 year old biological male to compete against 14-18
year old biological girls is unsafe and unfair to those female athletes.
2
19. Part of the reason girls’ basketball exists, as the VPA’s own policies suggest, is to
give female athletes an equal opportunity to participate in competitive sports.
20. Earlier this year I learned that our girls’ basketball team was scheduled to play the
Long Trail school in the state tournament for the 2022-23 season.
21. Before that, I had learned that the Long Trail School had a biological male on its
girls’ basketball team, as I had read articles, watched videos, and had discussions with other
coaches and athletic directors.
22. When I learned that our team was set to play the Long Trail School, I immediately
became concerned because of Mid Vermont Christian’s (and our) views and beliefs on biblical
sexuality and gender and because of the inherent fairness and safety threats in forcing our girls to
play against a biological male.
23. I consulted with Vicky Fogg, Mid Vermont Christian administrators, coaching staff
and players, and their parents, and we determined that the School would not force its girls to play
against a biological male in girls’ basketball because doing so would undermine the School’s
religious beliefs and therefore jeopardize the fairness and safety of the game.
24. So we withdrew from the state tournament game against the Long Trail School which
resulted in forfeiture.
25. My wife and I were in total agreement with this decision.
26. As a result of the School’s decision, the VPA expelled Mid Vermont Christian from
the athletic association.
27. Now, our children M.G. and A.G. cannot participate in any VPA athletics or
activities.
28. Schedules for VPA spring sports, including track, are being made now.
29. A.G. was not able to run track in the Spring 2023 season because Mid Vermont
Christian was expelled from the VPA.
3
30. And M.G., despite being able to play last year, was not able to play VPA volleyball
during the Fall 2023 season.
31. As a result of not being able to play in the VPA, Mid Vermont Christian’s only viable
option, if it wished to continue playing sports, was to join the New England Association of
Christian Schools (“NEACS”) which contains members across five different states.
32. We must now travel much further for away games than we had to when in the VPA.
In fact, it takes, on average twice as long to travel to an away game by car and bus in the
NEACS. And further, the competition level in the NEACS is lower than that of the VPA.
33. And M.G. and A.G. are likewise unable to compete in Vermont state tournaments,
cannot compete for state championships, and cannot achieve accolades they otherwise would be
eligible for if Mid Vermont Christian was competing in the VPA.
34. A.G. has previously received awards from the Vermont Basketball Coach’s
Association, including being named to the 2022-2023 Dream Dozen team. But this year he is not
eligible due to the School’s expulsion from the VPA. A.G.’s potential college scholarship
opportunities have been diminished as a result.
35. M.G. and A.G. are thus being harmed by not being able to compete in the VPA.
36. M.G. and A.G. are being penalized for being enrolled at Mid Vermont Christian
School.
37. My wife and I are also being penalized for choosing to send our children to Mid
Vermont Christian School because our children do not receive the same extracurricular
opportunities they would if we had sent them to a different school.
38. We will not send our children to a different school just so they can compete in the
VPA because we want our children to receive the Christian education that is offered at Mid
Vermont Christian.
4

DISTRICT OF VERMONT

DECLARATION OF BETHANY GOODWIN
Plaintiffs, IN SUPPORT OF PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION
v.

Association,
Defendants.
I, Bethany Goodwin, hereby declare as follows:
competent to make this declaration and make it based on my personal knowledge.
2. My husband, Christopher Goodwin, and I are the parents of Plaintiffs A.G. and M.G.
Both are currently enrolled at Mid Vermont Christian School.
3. Our son, A.G., is a senior in high school and a member of Mid Vermont Christian’s
varsity boys’ basketball and track teams.
4. Our daughter, M.G., is in eighth grade and a member of Mid Vermont Christian’s
varsity girls’ basketball team. At Mid Vermont Christian and other schools in the Vermont
Principals’ Association, eighth graders are eligible to play on high school varsity teams when the
school does not have enough high school students to form a full team.
5. M.G. and A.G. desire to continue competing on Mid Vermont Christian’s athletic
teams and likewise desire to compete in activities sponsored by the Vermont Principals’
Association.
6. My husband is also the head coach of Mid Vermont Christian’s varsity girls’
basketball team. He has been the head coach since 2015.
7. My husband and I choose to send our children to Mid Vermont Christian School
because the School is a Christian school that teaches its students from a biblical worldview. We
both share Mid Vermont Christian’s religious beliefs and desire that our children receive a
holistic religious education in line with our own beliefs.
1
biological girls to be forced to compete with and against in athletics against biological boys.
12. We believe that forcing M.G. to compete against (or on the same team as) a boy who
identifies as a girl in girls’ basketball would make us complicit in furthering the falsity that sex is

13. Likewise, we believe that forcing A.G. to compete against (or on the same team as) a
girl who identifies as a boy in boys’ basketball or track would make us complicit in furthering
the falsity that sex is changeable and would thus undermine our religious beliefs.
14. We believe forcing M.G. to compete against (or on the same team as) a boy who
identifies as a girl in girls’ basketball threatens her safety, is fundamentally unfair, and ignores
God’s purposeful design, in violation of our religious beliefs.
15. Earlier this year my husband and I learned that our girls’ basketball team was
scheduled to play the Long Trail school in the state tournament for the 2022-23 season.
16. When we learned that our team was set to play the Long Trail School, I immediately
became concerned because of Mid Vermont Christian’s (and our) views and beliefs on biblical
sexuality and gender and because of the inherent fairness and safety threats in forcing our girls to
play against a biological male.
17. My husband consulted with Vicky Fogg, Mid Vermont Christian administrators,
coaching staff and players, and their parents, and determined that the School would not force its
girls to play against a biological male in girls’ basketball because doing so would undermine the
School’s religious beliefs and therefore jeopardize the fairness and safety of the game.
18. So Mid Vermont Christian withdrew from the state tournament game against the
Long Trail School which resulted in forfeiture.
2
19. My husband and I were in total agreement with this decision.
20. As a result of the School’s decision, the VPA expelled Mid Vermont Christian from
the athletic association.
21. Now, our children M.G. and A.G. cannot participate in any VPA athletics or
activities.
22. A.G. was not able to run track in the Spring 2023 season because Mid Vermont
Christian was expelled from the VPA.
23. And M.G., despite being able to play last year, was not able to play VPA volleyball
during the Fall 2023 season
24. Both of my children are likewise unable to compete in Vermont state tournaments,
cannot compete for state championships, and cannot achieve accolades they otherwise would be
eligible for if Mid Vermont Christian was competing in the VPA.
25. A.G. has previously received awards from the Vermont Basketball Coach’s
Association, including being named to the 2022-2023 Dream Dozen team. But this year he is not
eligible due to the School’s expulsion from the VPA. A.G.’s potential college scholarship
opportunities have been diminished as a result.
26. M.G. and A.G. are being harmed by not being able to compete in the VPA.
27. M.G. and A.G. are being penalized for being enrolled at Mid Vermont Christian
School.
28. We are also being penalized for choosing to send our children to Mid Vermont
Christian School because our children do not receive the same extracurricular opportunities they
would if we had sent them to a different school.
29. We will not send our children to a different school just so they can compete in the
VPA because we want our children to receive the Christian education that is offered at Mid
Vermont Christian.
3

Mid Vermont PI

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Case 2:23-cv-00652-gwc Document 14 Filed 12/19/23 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE

MID VERMONT CHRISTIAN SCHOOL,

v. (Oral Argument Requested)

HEATHER BOUCHEY, in her official

argument on this Motion.

their free exercise rights, and infringed their free speech.

uncontested status which preceded the pending controversy”).

Specifically, Plaintiffs move this Court for a preliminary injunction:

School to participate in the Town Tuitioning and Dual Enrollment Programs.

2. Prohibiting Defendants Bouchey and Samuelson from requiring Mid Vermont

Christian School—as a condition to obtaining approved independent school status—to comply

3. Prohibiting Defendants Bouchey and Samuelson from requiring Mid Vermont

and Vermont Fair Employment Practices Act.

attend Mid Vermont Christian, including for Plaintiff T.S.

conform with the VPA’s gender identity policy.

beliefs about marriage, sex, and gender.

8. Issuing the above-requested relief without bond.

Dated: December 19, 2023 Respectfully submitted,

Attorneys for Plaintiffs

Steven J. Zakrzewski, Esq.

Pietro Lynn, Esq.

Laura C. Rowntree, Esq.

UNITED STATES DISTRICT COURT FOR THE

MID VERMONT CHRISTIAN SCHOOL,

HEATHER BOUCHEY, in her official

Statement of Facts ........................................................................................................................... 2

A. Plaintiffs and their religious beliefs and practices. ..........................................................2

I. Plaintiffs are likely to succeed on the merits of their claims. .......................................... 8

B. The State has engaged in unconstitutional religious hostility........................................10

C. Vermont’s policies are not neutral or generally applicable. ..........................................11

D. Vermont infringes Plaintiffs’ freedom of speech...........................................................13

E. Vermont’s policies fail strict scrutiny. ...........................................................................14

II. Plaintiffs satisfy the remaining preliminary injunction factors. ..................................... 15

303 Creative, LLC v. Elenis, 600 U.S. 570 (2023) ....................................................................... 14

A.H. v. French, 985 F.3d 165 (2d Cir. 2021) ............................................................................ 1, 10

B. P. J. v. West Virginia State Board of Education,

Carson v. Makin, 596 U.S. 767 (2022) .................................................................................. passim

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) ................................... 9, 10

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

In re A.H. v. French, 999 F.3d 98 (2d Cir. 2021) ................................................................. 1, 4, 10

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

Obergefell v. Hodges, 576 U.S. 644 (2015).................................................................................. 10

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............................................................................. 13

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) ............................................. 13

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ................................................................................. 13

9 V.S.A. § 4502(d) ........................................................................................................................ 13

9 V.S.A. § 4502(h) ........................................................................................................................ 13

9 V.S.A. § 4502(l) ......................................................................................................................... 13

16 V.S.A. § 166(b) ........................................................................................................................ 12

16 V.S.A. § 822(a)(1) ..................................................................................................................... 4

21 V.S.A. § 495(a) .......................................................................................................................... 5

7-1 Vt. Code R. § 3:2220 ................................................................................................................ 4

7-1 Vt. Code R. § 3:2222 ................................................................................................................ 4

7-1 Vt. Code R. § 3:2223.3 ........................................................................................................... 12

7-1 Vt. Code R. § 3:2225.1 ............................................................................................................. 4

7-1 Vt. Code R. § 3:2225.1(b) ...................................................................................................... 12

7-1 Vt. Code R. § 3:2226.6 ................................................................................................... 4, 9, 14

7-1 Vt. Code R. § 3:2227 .............................................................................................................. 12

established in Biblical truth,” so it holistically educates its students in a biblical worldview

Vermont wants the School to operate—and thus believe—differently to participate in public

School comes in two forms.

funds promised to them.