Judge Diane Wood of the 7th Circuit writes simple and straightforward opinions. I like the way she sets the stage for her opinion in A.C. v. Metropolitan School District of Martinsville:
Litigation over transgender rights is occurring all over the country, and we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far. Until then, we stay the course and follow Whitaker.
Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) is the binding precedent in the 7th Circuit on transgender students and bathrooms. In it, the court granted an injunction that allowed transgender students to use bathrooms conforming with their gender identity. By “staying the course” the 7th Circuit in this recent case simply followed its own precedent.
The court acknowledged the Circuit split on this issue:
The 4th Circuit has decided that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause, while the 11th Circuit found no violations based on substantially similar facts. Compare Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), with Adams ex rel. Kasper v. School Board of St. John’s County, 57 F.4th 791 (11th Cir. 2022) (en banc).
Judge Wood’s decision keeps the 7th Circuit aligned with the 4th.
So you must be wondering: where does this leave us? We have no binding Supreme Court decision, nor do we have one from the 5th Circuit. Our Circuit is notably conservative and most scholars would predict that the 5th would align with the 11th Circuit on this hot button issue. But that hasn’t happened so far.
What do we do? Take a deep breath. Assess each situation on its own merits, and with the goal of providing safe and respectful bathroom access for every student. If litigation is threatened, you know what to do: contact the school attorney who can help you sort out the legal risks. As for this school attorney, I’m hoping the Supreme Court will take up Judge Wood’s suggestion.
This one is A.C. v. Metropolitan School District of Martinsville, decided by the 7th Circuit on August 1, 2023. It’s cited at 2023 WL 4881915.
DAWG BONE: JUDGE DIANE WOOD. THE DAWG ASKED HER ON A DATE LONG AGO. MOTION WAS DENIED.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.