"Schooled" On The Law IN Public Education

A.C. v. Metropolitan School District of Martionsville, No. 22-1786/B.E. and S.E. v. Vigo County School Corporation, No. 22-2318 (7th Cir. Aug. 1., 2023)

Issue: Whether school district’s decision to bar a transgender male student from using the boy’s restroom at school violated the student’s Title IX and Fourteenth Amendment Equal Protection Clause rights?

Facts: A.C., B.E., and S.E. are three transgender male students who request to use the boys’ bathrooms at their schools. The school districts denied the requests. The students filed suit in federal district against the 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.

The district court granted the students’ motions for a preliminary injunction. It ordered the defendants to allow the students access to the boys’ bathrooms and, in the case of B.E. and S.E., access to the boys’ locker rooms when changing for gym class.

The district courts in both cases granted the preliminary injunctions, relying on our decision in Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017).

Holding/Rationale: The Seventh Circuit panel unanimously held, adhering to circuit precedent in Whitaker, it affirmed the lower court’s grant of the preliminary injunction. However, one member of the panel concurred in the judgment only.

The two-judge majority began saying, “Whitaker answers almost all the questions raised by these consolidated appeals. ” However, the majority acknowledge the three arguments defendants had raised asserting the Whitaker was no longer authorative law.

In regard to defendants’ contention Whitaker was partially abrogated by Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020), the majority said, “Adhering to that guidance in Illinois Republican Party, we concluded that the showing must be a strong one, though the applicant ‘need not show that [he] definitely will win the case.’”

Addressing The school districts’ contention that this shift weakened Whitaker’s authoritative value, the majority responded:
“Perhaps there are some cases that have been affected by
the need to make a more compelling showing of likelihood of
success, but Whitaker is not one of them. Whitaker did not even
hint that the likelihood of success on the merits was a close
issue or that anything hinged on the better-than-negligible
threshold.” It also pointed out “both district courts in the cases now before us applied the correct standard and came out the same way, finding that the law and the evidentiary records established the necessary strong likelihood of success.”

Turning to the defendants’ contention that the U.S. Supreme Court has provided intervening guidance on how to analyze issues of transgender discrimination in Bostock, the majority found:

Both Title VII, at issue in Bostock, and Title IX, at issue
here and in Whitaker, involve sex stereotypes and less favorable treatment because of the disfavored person’s sex. Bostock thus provides useful guidance here, even though the particular application of sex discrimination it addressed was different.

The majority rejected the argument that the Bostock court’s decision to refrain from from addressing how “sex-segregated
bathrooms, locker rooms, and dress codes” were affected by
its ruling undermines Whitaker. It found the defendants’ conclusion that Bostock’s definition of sex discrimination does not apply in the bathroom context” flawed. Itr concluded that the Bostock court was simply reserving the question of bathroom access for a case it was actually raised as a issue.

According to the majority, it was simply following Bostock’s instruction to 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.”

Finally, the majority addressed the defendants’ argument that Whitaker failed to “adequately grapple with a provision in Title IX that permits educational institutions to ‘“’maintain[] separate living facilities for the different sexes.’” It opined:

If Whitaker had failed to take that admonition into account,
maybe there would be a problem. But it did no such thing.
Whitaker cited 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,” and in looking
to case law for guidance, we saw nothing to suggest that “sex”
referred only to biological sex.

The majority concluded:

[S]ection 1686 is of little relevance to this appeal.
Though it certainly permits the maintenance of sex-segregated facilities, we stress again that neither the plaintiff in
Whitaker nor the plaintiffs in these cases have any quarrel with
that rule. The question is different: who counts as a “boy” for
the boys’ rooms, and who counts as a “girl” for the girls’
rooms—essentially, how do we sort by gender? The statute
says nothing on this topic, and so nothing we say here risks
rendering section 1686 a nullity.

The majority held: “[W]e reject the school districts’ presupposition that separate facilities for the sexes forecloses access policies based on gender identity. Nothing in section 1686 requires this outcome.”

Turning to the current circuit split, the majority stated: “It makes little sense for us to jump from one side of the circuit split to the other, particularly in light of the intervening guidance in Bostock.”

Applying Whitaker to the present case, the majority concluded the plaintiff students were treated worse that other boys because of their transgender status. It agreed with the district court that the school districts’ attempt to justify their policies on privacy grounds was unavailingly. It point out that “[g]ender-affirming facility access does not implicate the interest in preventing bodily exposure, because there is no such exposure.”

The majority also noted:

In addition to the likelihood of success on the Title IX and
equal protection claims, we note also that the school districts
in these two cases may be violating 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 majority outlined the scope of its decision stating:

First, we are addressing only the issue before us. We express no
opinion on how Title IX or the Equal Protection Clause regulates other sex-segregated living facilities, educational programs, or sports teams. The district courts took the same approach in the injunctions they issued, properly confining their analysis to the immediate problem.

The majority also noted “nothing in the district courts’ injunctions restricts a school district’s ability to monitor student conduct in bathrooms and locker rooms.”

Judge Easterbrook concurred in judgment based on his reluctance to overrule Whitaker. However, Easterbrook stated he found the Eleventh Circuit decision in Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022) is closer to mark “in
concluding that ‘sex’ in Title IX has a genetic sense, given
that word’s normal usage when the statute was enacted.”

Judge Easterbrook stressed “[m]uch of life reflects social relations and desires rather than instructions encoded in DNA.
Nurture and nature both play large roles in human life.” The judge added, “Classifying as “boys” youngsters who are socially boys (even if not genetically male) is an act of kindness without serious costs to third parties. But if Title IX uses the word “sex” in the genetic sense, then federal law does not compel states to do this.”

Comment: As the previous blog entry notes A.C. is consistent with the trend in federal district and circuit courts.