The 7^th Circuit Court of Appeals, the federal appellate court with jurisdiction over Illinois school districts,  has affirmed the temporary decision of two lower federal district courts in Indiana. Those two lower federal district courts in Indiana each held that the Vigo County School Corporation and the Metropolitan School District of Martinsville cannot restrict the access of a middle school student and two high school transgender boys to the school locker rooms and bathrooms restrooms consistent with the gender with which they identify. The courts concluded that such actions to deny access to the students based on their identified gender would violate both Title IX the right to equal protection under the 14th Amendment of the U.S. Constitution. The cases still must proceed to full hearings on the merits of the cases.  The decision is consistent with the 7^th Circuit Court’s prior decision this year in April, 2023 in Kluge v. Brownsburg Community School Corp., No. 21-2475 (7th Cir. 2023) and its 2017 decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (2017).  In Kluge the 7^th Circuit ruled that an Indiana school district acted lawfully in terminating a teacher who had refused to use transgender student’s names and gender pronouns, based on his religious beliefs.  In Whitaker the 7^th Circuit held that a Wisconsin school district could not prohibit a transgender student from using the boys’ restrooms at school.  The Court opined that it expected the U.S. Supreme Court to eventually offer guidance on these issues.

In August of this year, the U.S. Supreme Court refused to hear the appeal of a Virginia school board seeking to reinstate its transgender bathroom ban.  See G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020)  The student in Gloucester sought to use the restrooms corresponding with his identified gender as a boy and challenged the school policy requiring students to use the bathrooms corresponding with their biological sex.  The lower courts found the school policy to be unconstitutional.

The full case decision in A.C., by his next friend, M.C. v. METROPOLITAN SCHOOL DISTRICT OF MARTINSVILLE and B.E. and S.E. by their next friend L.E. v. VIGO COUNTY SCHOOL CORPORATION is available at:  https://www.aclu-in.org/sites/default/files/field_documents/decision.pdf

The Illinois State Board of Education has issued a guidance in this area for school practices and procedures entitled: “SUPPORTING TRANSGENDER, NONBINARY, AND GENDER NONCONFORMING STUDENTS;  Sample Board Policies and Administrative Procedures”; Illinois State Board of Education; (March 9, 2020). https://www.isbe.net/Documents/District-Policy-Admin-Proc.pdf#search=school%20policies

A more detailed summary of the decision of the 7^th Circuit Court of Appeals is set forth below. 

Case Summary

A.C., by his next friend, M.C. v. METROPOLITAN SCHOOL DISTRICT OF MARTINSVILLE and B.E. and S.E. by their next friend L.E. v. VIGO COUNTY SCHOOL CORPORATION is available at:  https://www.aclu-in.org/sites/default/files/field_documents/decision.pdf

The 7^th Circuit Court of Appeals has affirmed the preliminary orders of two lower federal courts that transgender students have the legal right to use those restroom and locker facilities that align with their identified gender.  The Court upheld the preliminary decisions of the two federal district courts in Indiana to grant temporary restraining orders ruling that several transgender boys in the Vigo County School Corporation and the Metropolitan School District of Martinsville must be allowed to access the school locker rooms and bathrooms restrooms consistent with the gender with which they identify. 

The school districts argued that the students’ identity was based only on “self-identification.”

The Court pointed out that all three students involved had provided substantial proof of their medical diagnoses and the treatments they receive from professionals to assist in their gender transitions and that their gender identities were not superficial changes. These are not cases where the students’ good faith requests for gender-affirming facility access could be questioned.  

Each of the transgender students involved had taken significant medical and legal steps in pursuing gender transition and identification.  Each student legally changed their name and gender designation on their birth certificates.  There are a number of states across the country that have passed laws which serve to restrict or prohibit access of transgender students to facilities aligned with a students’ gender identity.  The State of Indiana has not yet enacted such a law. These restrictions were imposed locally by the schools involved.

The Court declined to determine how Title IX or the equal protection violation might regulate other sex-segregated spaces, and emphasized it was analyzing only the issue of school restroom access.   The Court cited to its prior decision in 2017 in Whitaker v. Kenosha Unified School District, in which the Court ruled that a Wisconsin school district could not prohibit a transgender student from using the boys’ restrooms at school. 

As for the school district arguments that other students are at risk if a transgender student were to utilize a restroom or locker room consistent with their gender identity, the Court made it clear that there were no restrictions on a school district’s ability to monitor student conduct in bathrooms and locker rooms.  School misconduct in any spaces at school, including bathrooms and locker rooms, is a violation of school rules.  The Court noted there was no proof and that it had no reason to believe that students would try to take advantage of gender-affirming facility access policies by pretending to be transgender.   

The references for the lower court decisions.

A.C., a minor child by his next friend, mother and legal guardian, M.C. v. METROPOLITAN SCHOOL DISTRICT OF MARTINSVILLE and FRED KUTRUFF, 601 F. Supp. 3d 345 (S.D. Ind. 2022)

B.E. and S.E., minor children by their next friend, mother and legal guardian, L.E. v Vigo County School Corporation, F.Supp.3d 725 (S.D.Ind. 2022)

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