• Rob Strong
• Mid Vermont Christian School in Quechee

The school year has started, but student athletes at Mid Vermont Christian School aren't playing against the local teams they have faced in the past. In March 2023, the school was banned from competing in all activities overseen by the Vermont Principals' Association, which governs interscholastic sports in the state.

The VPA imposed the ban after determining Mid Vermont Christian violated the organization's gender identity and nondiscrimination policies by refusing to play against a girls' basketball team that included a transgender player.

But the Quechee school wants back in the game. It has filed a lawsuit arguing that it has been discriminated against for its religious beliefs. And the school thinks its athletes should be allowed to compete in state-sanctioned sporting events while the courts consider the case.

A federal judge in Vermont denied that request, but last month Alliance Defending Freedom — a well-funded national conservative legal group — appealed to a higher U.S. court.

The organization's senior counsel, Ryan Tucker, characterized the ban as a "blatant act of discrimination and hostility" and urged the court to "uphold constitutional protections by guaranteeing the school can fully participate while still adhering to its religious beliefs."

Vermont, which protects students' right to play on a team based on their gender identity, isn't alone in grappling with this culture-war issue. Since 2021, more than two dozen states have passed laws barring transgender students from sports teams that align with their gender identity. In New Hampshire, two transgender athletes challenged their state's ban, and a U.S. District Court judge recently issued an emergency order that allows them to participate.

While these cases are still wending through the court system, their outcomes could have far-reaching implications for what has become a contentious, politicized issue nationwide.

"When you see these cases being litigated in lots of different jurisdictions, it's not uncommon for one or several of them to move up through the system and ultimately end up at the U.S. Supreme Court," said Jared Carter, a law professor at the Vermont Law & Graduate School.

According to its website, Mid Vermont, which has about 100 students in pre-K through 12th grade, was created in 1987 by a group of parents who believed that God told them to start a school. It espouses a "Christ-centric" education with "the Word of God ... integrated into each classroom and each subject."

The State Board of Education has designated Mid Vermont an "approved independent school," which means it's eligible to receive state tuition dollars for students who don't have a public school option in their towns. Under board rules, such schools are supposed to maintain nondiscriminatory enrollment policies.

But Mid Vermont Christian insists it has the right to act in accordance with its religious beliefs, regardless of those policies. For example, as part of its January 2023 application for "approved" status, the school was required to sign a document saying it would comply with the Vermont Public Accommodations Act "in all aspects of the school's admissions and operations." That law states, in part, that schools cannot deny services based on "race, creed, color, national origin, marital status, sex, sexual orientation or gender identity."

Vicky Fogg, Mid Vermont's head of school, signed the document — but added a typed caveat below it.

"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," the statement reads. "By signing this form, the Mid Vermont Christian School does not waive any such right."

Despite that, the state awarded Mid Vermont the independent school status it sought, through 2028. During the 2022-23 school year, the school received $56,000 in public dollars to pay the tuition of four students, according to the Agency of Education's most recent data.

Mid Vermont's current lawsuit is an extension of the central role religion plays at the school. For example, while some Vermont religious schools accept students of any faith, Mid Vermont does not.

Documents the school submitted to the state earlier this year — meant to attest to its nondiscriminatory practices — state that Mid Vermont requires parents or caregivers to affirm that at least one of them is "a born again believer in Jesus Christ who regularly attends and participates in a church whose doctrinal position essentially agrees with the school's statement of faith." It also says that a parent's occupation "will be taken into consideration as a factor in admissions if it is morally or spiritually questionable."

In its enrollment application, parents and high school students are asked to write "a brief personal testimony" explaining how they have "accepted Jesus Christ as their Lord and Savior" and provide the names of their church and pastor.

• File: Tim Newcomb

Mid Vermont's lawsuit argues that banning its teams from state-sanctioned athletic contests violates the school's First Amendment rights by preventing it from exercising its religious beliefs about sexuality and gender. (In the meantime, the school's students are competing in a smaller Christian athletic league.)

In June, U.S. District Court Judge Geoffrey Crawford denied the school's request for a preliminary injunction, which would have allowed it to rejoin the VPA while the trial proceeded.

Crawford found that Mid Vermont's expulsion was "not motivated by animus against their religious beliefs" but because the school violated the policy that allows transgender students to participate on the team of their choice. Crawford also helped hammer out an agreement between the parties that allows Mid Vermont to participate in certain VPA events such as spelling bees.

But on August 30, the school appealed Crawford's denial to the U.S. Court of Appeals for the Second Circuit. The school's lawyers pointed to a situation in 2021 when three girls' basketball teams forfeited games against Woodstock Union High School to avoid competing against an athlete who had an exemption from the COVID-19 mask mandate. Those schools, the lawyers noted, were not kicked out of the VPA.

Meanwhile, the appeal argues, Mid Vermont was booted for a decision driven by its religious belief that "sex is God-given and immutable and that God created each of us either male or female" and that "rejecting one's biological sex is a rejection of the image of God within that person." The appeal alleges that "the VPA's actions treat 'comparable secular activity more favorably than religious exercise.'"

At the heart of the argument, said Carter, the law professor, is the notion that religious organizations shouldn't be excluded from a public benefit for exercising their beliefs. That argument has found sympathy at the U.S. Supreme Court in recent cases involving public money going to religious schools — but it's unclear whether it will translate to sports.

"School funding is certainly different ... from participating in an athletic league," Carter said. "I think we're talking about apples and oranges."

Alliance Defending Freedom's larger strategy, according to Carter, appears to be expanding what is covered under the "free exercise" clause of the First Amendment, which protects citizens' rights to practice their religion.

The legal organization has sued the state and Vermont school districts multiple times in recent years. It's currently suing the state Department for Children and Families for revoking the foster-care licenses of two families. The couples refused to support the agency's policy on gender identity and sexual orientation due to their religious beliefs.

Another pending suit contests a state law that curtails the speech of anti-abortion pregnancy centers, which typically have religious affiliations.

Several Alliance Defending Freedom cases have ended with school-district payouts. A former snowboarding coach at Woodstock Union High School, for instance, settled his case after being fired for alleged comments he made about a transgender snowboarder on an opposing team. In another, a Randolph teen and her father received thousands of dollars after they were disciplined for speaking out against a transgender volleyball player who used a girls' locker room.

The legal group appears particularly interested in challenging Vermont's protections for transgender student athletes. Its appeal in the Mid Vermont case cites state guidance that says "generally, students should be permitted to participate in physical education and sports in accordance with the student's gender identity." That guidance also says that "participation ... will be resolved on a case-by-case basis."

Alliance Defending Freedom argues the recommendations are "intentionally ambiguous and noncommittal at every turn," which gives the VPA discretion in how to enforce them.

The Vermont Agency of Education and VPA executive director Jay Nichols declined to comment on the appeal.

But, Nichols noted, his organization "welcomes any school into our membership as long as they follow our member-agreed-upon policies and Vermont state law."