United States Supreme Court Denial of Cert.

The United States Supreme Court, again passed on the opportunity to clarify transgender students’ rights under the Equal Protection Clause and Title IX.  

On January 16, 2024, the United States Supreme Court denied the Metropolitan School District of Martinsville, Indiana’s Petition for Writ of Certiorari that sought review of the United States Court of Appeals for the Seventh Circuit decision which permitted transgender students in Indiana to access bathrooms and locker rooms that corresponded to their gender identity.

On August 1, 2023, the United States Court of Appeals for the Seventh Circuit enjoined the Indiana school district from denying three transgender students from the use of bathrooms and locker rooms that matched their gender identity. See A.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786 (Aug. 1, 2023). The Seventh Circuit reasoned that the students were likely discriminated against by reason of their sex in violation of Title IX of the Educational Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment under the school districts’ policies denying the students gender-affirming bathroom and locker rooms access.

There continues to be a split among the United States Court of Appeals on this issue. The Eleventh Circuit has held that neither Title IX nor the Equal Protection Clause deprives schools of the ability to maintain bathrooms separated on the basis of biological sex. See Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022). The Fourth and Seventh Circuit have held the opposite. See A.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) and Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 632 (4th Cir. 2020).

In denying Certiorari, the Supreme Court’s has again refused to resolve the question of whether Title IX or the Equal Protection Clause prohibit local schools from maintaining separate bathrooms or locker rooms based on a student’s biological sex. Until the Supreme Court takes up the issue, or the issue is addressed in final Title IX regulation changes, Illinois school boards and administrators are reminded that the Seventh Circuit’s decisions in A.C. v. Metro Sch. Dist. of Martinsville and Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 remain the guiding precedent in Illinois.