The 7th Circuit Court of Appeals has a very thoughtful opinion pertaining to use of school bathrooms by transgender students. The outcome was that the 7th Circuit affirmed District Court opinions in two cases that entered injunctions against Martinsville schools and against Vigo County School District which require the schools to allow the Plaintiffs, transgender boys in both cases, to use the boys bathroom in the schools.
They based their opinion on a few things:
- A) There is 7th Circuit precedent from a Wisconsin case that supports this result.
- B) The precedent stands for the proposition that when Title IX prohibits discrimination “on the basis of sex,” it is talking about “sex” in the social context (i.e. gender) and not just as a biological matter;
- C) There is already a split in opinion between the 4th and 11th Circuits on the subject of whether Title IX means “sex” solely as a matter of biology. The 7th Circuit and the 4th are currently aligned in thinking “sex” means something more than just chromosomal make up. Shifting gears and joining the 11th Circuit would still leave a split among Circuits. One way or another, the Supreme Court or Congress is going to have to reconcile the split.
- D) When considering injunctions, courts are required to balance harms. The students have pointed to very real harms they are experiencing by being required to either use the girls’ bathrooms or the unisex bathroom in the nurse’s office. Meanwhile, the schools are “fighting a phantom.”
“Gender-affirming facility access does not implicate the interest in preventing bodily exposure, because there is no such exposure. . . . There is no evidence that any students will be exposed to A.C. or vice versa. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”
Judge Easterbrook concurred in the result but not in the opinion. He thinks they should follow precedent and, therefore, affirm the injunction. That said, he thinks the 11th Circuit is probably right that the authors of Title IX probably had biological sex in mind when they wrote it. Even though he holds that view of the law, he observes:
Like my colleagues, I’m puzzled that the school districts did not act on the logical implication of these orders. Much of life reflects social relations and desires rather than instructions encoded in DNA. Nurture and nature both play large roles in human life. Classifying as ‘boys’ youngsters who are socially boys (even if not genetically male) is an act of kindness without serious costs to third parties.