7th Circuit upholds preliminary injunctions ordering 2 schools to allow trans kids to use gender-affirming bathrooms

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The 7th Circuit Court of Appeals declined to reverse preliminary injunctions against two school districts, upholding orders for the districts to allow transgender students to use the boys’ bathrooms and opining that the U.S. Supreme Court will eventually give more guidance on the issue.

The consolidated appeal involves three transgender boys — A.C., B.E. and S.E. — who want to use the boys’ bathrooms at their schools. During the time relevant to the case, A.C. attended a middle school in Martinsville, and B.E. and S.E., who are twins, attended high school in Terre Haute.

Both schools denied the boys’ requests. In the case of B.E. and S.E., they were also denied access to the boys’ locker room to change for gym class.

The students sued the districts and school principals, alleging sex discrimination in violation of Title IX of the Education Amendments Act of 1972 and the equal protection clause of the 14th Amendment.

The students requested preliminary injunctions that would order the schools to grant them access to the bathrooms and locker rooms.

The U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted a preliminary injunction for A.C. in April 2022. The Indiana Southern District Court, Terre Haute Division, did the same for B.E. and S.E. in June 2022.

Both district courts relied on the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017).

In that case, a 17-year-old transgender boy sued the Kenosha Unified School District in Wisconsin for not allowing him to use the boys’ bathroom. The 7th Circuit held Whitaker’s worsening mental and physical health, coupled with his suicidality, meant the harm was irreparable and could not be adequately remedied at law.

In a consolidated appeal, the school districts argued Whitaker is no longer authoritative.

The districts argued Whitaker was partially abrogated by Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020). They also pointed to the U.S. Supreme Court’s intervening guidance on how to analyze issues of transgender discrimination in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and they said Whitaker didn’t accommodate for a provision in Title IX that permits educational institutions to maintain “separate living facilities for the different sexes.”

The 7th Circuit disagreed with each of those arguments.

The abrogation issue arose from the U.S. Supreme Court’s holding in Nken v. Holder, 556 U.S. 418 (2009), in which justices said “[i]t is not enough that the chance of success on the merits be ­better than negligible.” Adhering to that guidance in Illinois Republican Party, the 7th Circuit concluded the showing must be a strong one, though the applicant “need not show that [he] definitely will win the case.”

But the 7th Circuit ruled Whitaker was not affected by the need to make a more compelling showing of likelihood of success.

In appealing to Bostock, the school districts argued the U.S. Supreme Court’s decision undermines Whitaker because the court refrained from addressing how “sex-segregated bathrooms, locker rooms, and dress codes” were affected by its ruling.

“That is reading quite a bit into a statement that says, in essence, ‘we aren’t reaching this point,’” the 7th Circuit ruled. “The Supreme Court, and for that matter our court, does this all the time.”

The opinion continued: “Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes, just as it is for Title VII purposes. As Bostock instructs, we ask whether our three plaintiffs are suffering negative consequences (for Title IX, lack of equal access to school programs) for behavior that is being tolerated in male students who are not transgender.”

Addressing the districts’ appeal to Title IX, the 7th Circuit ruled Whitaker took into account the relevant implementing regulation, 34 C.F.R. § 106.33, which affirmatively permits recipients of educational funds to “provide separate toilet, locker room, and shower facilities” on the basis of sex, provided that the separate facilities are comparable.

“We noted that neither Title IX nor its implementing regulations define the term ‘sex,’” the opinion says, “and in looking to case law for guidance, we saw nothing to suggest that ‘sex’ referred only to biological sex.”

Finally, the 7th Circuit noted a circuit split on the issue.

“The Fourth Circuit has decided that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause,” the opinion says, “while the Eleventh Circuit found no violations based on substantially similar facts.”

It makes “little sense,” the opinion says, “for us to jump from one side of the circuit split to the other, particularly in light of the intervening guidance in Bostock.”

After settling the question of Whitaker’s authoritative value, the 7th Circuit went on to rule the district courts didn’t err in concluding the plaintiffs made a sufficiently strong showing of sex discrimination.

The 7th Circuit noted that no students complained about A.C.’s use of the boys’ bathroom, while the school district argues such evidence is unnecessary and that denying gender-affirming facility access is about protecting students from “exposure of their bodies to the opposite sex.”

“But the district is fighting a phantom,” the opinion says. “Gender-affirming facility access does not implicate the interest in preventing bodily exposure, because there is no such exposure.”

The 7th Circuit also noted the school districts may be in violation of Indiana law.

“Given that all three plaintiffs have received amended birth certificates and legal name changes that identify them as boys, they appear to be boys in the eyes of the State of Indiana,” the opinion says. “If so, then it would be contrary to Indiana law for the school districts to treat A.C., B.E., and S.E. as though they are not boys and to require them to use the girls’ bathrooms and locker rooms. But no plaintiff has pursued this theory of state-law violation, and so we do not explore it further.”

Senior Judge Diane Wood wrote the opinion.

In a concurring opinion, Judge Frank Easterbrook wrote that while he concurs in the judgment, he believes Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022), “better understands how Title IX applies to transgender students.”

“Title IX does not define the word, which can refer to biological sex (encoded in a person’s genes) or to social relations (gender),” Easterbrook wrote. “Sex is such a complex subject that any invocation of plain meaning is apt to misfire. I think, however, that Adams is closer to the mark in concluding that ‘sex’ in Title IX has a genetic sense, given that word’s normal usage when the statute was enacted.”

The Martinsville case is A.C., a minor child by his next friend, mother and legal guardian, M.C v. Metropolitan School District of Martinsville and Fred Kutruff, in his official capacity as Principal of John R. Wooden Middle School, 22-1786.

The Vigo County case is B.E. and S.E., minor children by their next friend, mother and legal guardian, L.E. v. Vigo County School Corporation and Principal of Terre Haute North Vigo High School, in his official capacity, 22-2318.

The American Civil Liberties Union of Indiana, which filed the lawsuits along with Indiana Legal Services, praised the 7th Circuit’s ruling.

“Students who are denied access to the appropriate facilities are caused both serious emotional and physical harm as they are denied recognition of who they are. They will often avoid using the restroom altogether while in school,” ACLU of Indiana Legal Director Ken Falk said in a statement. “Schools should be a safe place for kids and the refusal to allow a student to use the correct facilities can be extremely damaging.”

Both school districts were represented by Bose McKinney & Evans LLP. Indiana Lawyer has reached out to counsel for the districts for comment.

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