Indiana Attorney General Todd Rokita is wading into the dispute between a transgender middle school student and the Martinsville school district, arguing a federal judge was wrong to order the school to allow the student to use the restroom aligning with his gender identity.
Rokita, a Republican, filed a 21-state amicus brief Tuesday in 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 brief urges the 7th Circuit Court of Appeals to reverse the ruling in favor of plaintiff and A.C. and vacate the preliminary injunction entered against Martinsville schools.
The case is at the 7th Circuit after Chief Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana entered an injunction in April requiring the school district to allow 13-year-old A.C. — who was born female but now identifies as male — to use the boys’ restrooms at John R. Wooden Middle School. Pratt subsequently declined to stay the injunction pending appeal.
In entering the injunction in A.C.’s favor, Pratt relied on Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034 (7th Cir. 2017), which held that “a school policy that subjects transgender students to different rules, sanctions, and treatment than non-transgender students violates Title IX” of the Education Amendments of 1972. A.C. had argued the school district was violating Whitaker and his rights under Title IX and the equal protection clause when it would not allow him to use the boys’ restrooms, and the district court agreed.
But picking up on an argument advanced by the school district, Rokita argues in the amicus brief that Whitaker has been abrogated and, thus, does not control. What’s more, the amicus brief says Title IX “expressly permits sex-segregated restrooms,” and the meaning of “sex” under the law is biological sex, not gender identity.
“An interpretation of Title IX that prohibits separating bathrooms and locker rooms by biological sex would require schools to do away with sex-specific bathrooms and locker rooms entirely, not only for transgender students,” the brief argues. “Such an interpretation would be contrary to both common sense and the ‘well-established privacy interests in using the bathroom away from the opposite sex.’
“… Moreover, the district court says that mandatory exceptions to male-female restroom policies are determined by the students themselves,” the brief continues. “The district court asserts that ‘there was no evidence presented that taking hormones and receiving a gender marker change on one’s birth certificate are required prerequisites to identify as a transgender person, much less that either of these factors would automatically authorize A.C. to use the boys’ restroom.’ The implication is that no objective standard for identifying transgender persons — apart from self-identification — is permissible.”
Pratt’s initial order noted that A.C. has been granted a legal name change, but the Morgan Superior Court recently denied a gender marker change.
The teen has been diagnosed with and is being treated for gender dysphoria and has begun taking medication for menstrual suppression. Also, at the time of Pratt’s April order, A.C. hoped to begin taking male hormones in the near future.
Picking up on those facts, the brief says, “At bottom, the claim is that A.C. should be allowed to use the restrooms consistent with A.C.’s gender identity, regardless of anatomy and biology, because anatomy and biology carry no meaningful differences.”
“But this argument is, in fact, a challenge to sex-segregated bathrooms and locker rooms,” which are permitted under Title IX, according to the brief. “If anatomy and biology are unimportant, what grounds exist for sex-segregated bathrooms and locker rooms in the first place?”
As for the equal protection clause, Rokita and the amici argue that transgender individuals are not a suspect or quasi-suspect class subject to protection.
“Even Whitaker does not go so far as to recognize transgender status as a protected class,” according to the brief. “… More fundamentally, any claim of protected status for transgender individuals runs headlong into the Supreme Court’s longstanding view that ‘sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.’ Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
“… Perhaps the plaintiff instead means only to say that transgender people have historically been subjected to discrimination in a variety of contexts, but not specifically in the segregation of bathrooms and locker rooms,” the brief continues. “If so, that admission means that the school’s policies do not target transgender persons as such (because they target sex rather than gender identity) and merely have a disparate negative impact on transgender people.
“But if so, the status of transgender people as a class under the Equal Protection Clause is irrelevant, for the plaintiff’s claim must fail for a different reason — because the Equal Protection Clause protects only against intentional discrimination, not disparate impact.”
The amici ended the brief by arguing that forcing the school to change its restroom policy for A.C. would require it to making similar accommodations for other students.
“This enforcement problem would lead to privacy (and potentially safety) concerns for all students wishing to use restrooms and locker rooms away from the prying eyes of a member of the opposite sex,” the brief states. “For these reasons, the school’s policy of requiring students to use restrooms consistent with their biological sex is substantially related to the school’s important interest in protecting student privacy and therefore, does not violate the Equal Protection Clause.”
In addition to Indiana, states joining the amicus brief include Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.