Transgender and Seventh Circuit
In the U.S. Court of Appeals for the Seventh Circuit, which covers Illinois, Wisconsin, and Indiana, requires access by transgenders to the school bathroom of their choice, such that biological boys can use girls' bathrooms.
This was so held in Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), based on both Title IX and the Equal Protection Clause of the U.S. Constitution. This was reaffirmed by the Seventh Circuit in A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir. 2023).
Judge Frank Easterbrook, who is often excellent and conservative, wrote a weak concurrence in the Martinsville decision:
| “ | Given Whitaker v. Kenosha School District, 858 F.3d 1034 (7th Cir. 2017), this is an easy case for the plaintiffs. I am no more disposed than my colleagues to overrule Whitaker. A conflict among the circuits will exist no matter what happens in the current suits. The Supreme Court or Congress could produce a nationally uniform approach; we cannot.
I concur only in the judgment, however, because, although I admire my colleagues' thoughtful opinion, they endorse Whitaker, while I think that Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022) (en banc), better understands how Title IX applies to transgender students. My colleagues express confidence that Title VII (the subject of Bostock v. Clayton County, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020)) and Title IX use "sex" in the same way. See slip op. 13-14. The majority in Adams was equally confident of the opposite proposition. I am not so sure about either view. Title IX does not define the word, which can refer to biological sex (encoded in a person's genes) or to social relations (gender). 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. Indiana has elected to use a social definition rather than a genetic one; the state's judiciary has entered orders classifying all three plaintiffs as boys. Like my colleagues (see slip op. 21) 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. But if Title IX uses the word "sex" in the genetic sense, then federal law does not compel states to do this. |
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A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 775 (7th Cir. 2023) (Easterbrook, J., concurring).