On August 1, 2023, the Seventh Circuit Court of Appeals, in A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915 (7th Cir. Aug. 1, 2023), upheld preliminary injunctions against two Indiana school districts, allowing the transgender students to continue to use the boys’ bathroom and locker room during the pendency of the litigation. The Seventh Circuit has jurisdiction over Illinois school districts.
The decision involves three transgender male students. Two of the students attend school in one Indiana school district, and one student attends school in another Indiana school district. All three students were denied access to the boys’ bathroom at their schools, and two students also were denied access to the boys’ locker room when changing for gym class. The three students transitioned and identified as male for several years prior to requesting use of the boys’ facilities at their respective schools, including going by male names, using male pronouns, and adopting typically masculine appearances. In addition, the students are receiving medical care for gender dysphoria and undergoing testosterone treatment. For one student, the school district offered the option to use only the health office bathroom or attend school entirely online. For the other two students, they used the boys’ bathroom with no concerns reported by other students but were reprimanded by teachers. When addressing this with the school, the students were told they could only use the girls’ bathroom and locker room or unisex bathroom in the school’s health office. As a result of the facility restrictions, the three students suffered depression and humiliation, their school attendance and grades were negatively impacted, and they experienced medical issues due to not using the bathroom during the school day.
The students sued the two school districts and the school principals, alleging sex discrimination in violation of Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment. Two separate federal district courts in Indiana granted preliminary injunctions in favor of the students, relying on the Seventh Circuit’s previous decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (previously reported on by Hodges Loizzi here and here). The school districts appealed the issuance of the preliminary injunctions, and the cases were consolidated on appeal.
In its decision upholding the preliminary injunctions issued by the federal district courts, the Seventh Circuit likewise relied on Whitaker—and specifically declined the school districts’ request to revisit its holding in that case—and also on the U.S. Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (previously reported on by Hodges Loizzi here.) In Whitaker, the Seventh Circuit upheld a preliminary injunction allowing a transgender male student to access the boys’ bathroom at school. The Seventh Circuit found that the school district’s policy denying the student’s request was likely discriminatory and a violation of Title IX and the Equal Protection Clause. (The parties in that case later reached a substantial monetary settlement in favor of the student.) In Bostock, the Supreme Court held that employment discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 includes discrimination based on a person’s transgender status.
While this decision was limited to review of the preliminary injunctions, it is important because it confirms the Seventh Circuit’s position that denying access to gender-affirming facilities, like bathrooms, can violate Title IX and the Equal Protection Clause. That has been the position of the Seventh Circuit since Whitaker in 2017. Here, the Seventh Circuit reiterated that discrimination based on transgender status is a form of sex discrimination under Title IX. The Seventh Circuit further pointed out that Bostock, which was decided after Whitaker, only strengthens its conclusion in Whitaker. That is, if discrimination against transgender persons is sex discrimination for Title VII purposes, then it also is for Title IX purposes.
In its opinion, the Seventh Circuit acknowledged the “circuit split” on this issue across other federal appellate courts. The Fourth Circuit decided that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause (in the long-running case Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), while the Eleventh Circuit found no violations of Title IX and the Equal Protection Clause based on substantially similar facts (in Adams ex rel. Kasper v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc)). Thus, these issues concerning transgender students are “teed up” for possible review by the Supreme Court.
We will continue monitoring these cases and other litigation involving transgender students nationwide. Contact an attorney in our Students/Special Education practice group with questions.
