The transgender rights movement scored a victory on Thursday when the U.S. Court of Appeals for the 6th Circuit rejected an Ohio school’s attempt to bar a transgender girl from the girls’ restroom. By a 2-1 vote, a three-judge panel affirmed a lower court’s order requiring the school to let the student, an eleven-year-old, use the bathroom that aligns with her gender identity. The decision marks the second time a federal appeals court has held that Title IX bars federally funded schools from discriminating against transgender students by preventing them from using the correct bathroom.
Under 6th Circuit precedent, the ruling was not a difficult one. Title IX prohibits “sex discrimination,” and the Supreme Court has held that sex discrimination includes sex stereotyping. Under 6th Circuit precedent, discriminating against an individual for “fail[ing] to act and/or identity with his or her gender” constitutes impermissible sex stereotyping. When a school mistreats a transgender student, it is effectively punishing her for failing to identify with the gender she was assigned at birth. That constitutes sex stereotyping, and thus unlawful sex discrimination under Title IX.
There is one problem: In August, the Supreme Court blocked a nearly identical 4th Circuit ruling from taking effect while the justices reviewed the case. But, as the majority explained, that decision hinged on Justice Stephen Breyer’s desire to “preserve the status quo” while the appeal was pending. In that case, preserving the status quo meant continuing to exclude a transgender student from the proper bathroom. But in this case, preserving the status quo meant continuing to allow the transgender plaintiff to use the right bathroom, since she was already permitted to do so due to the lower court’s order. By safeguarding the eleven-year-old’s access to the bathroom, the court effectively “maintained the status quo as opposed to disrupting it.” Moreover, revoking bathroom access for the plaintiff, whom the court calls Doe, could only serve to harm her:
The record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.
Judge Jeffrey Sutton, who once authored an opinion affirming the constitutionality of same-sex marriage bans, dissented, arguing that the court should follow the Supreme Court’s lead and put any pro-trans ruling on hold while the justices mull the issue.
Sadly, Sutton may have the upper hand here: It’s difficult to count five votes for transgender rights on the current Supreme Court, and the next appointee is almost certain to oppose them. Moreover, Donald Trump’s choice for Secretary of Education, Betsy DeVos, is an anti-LGBTQ activist who will likely reverse the agency’s pro-trans Title IX interpretations. Thursday’s victory, however heartening, may also be fleeting.
But there is one lovely footnote to all this, no matter how it turns out in the end. The deciding vote in favor of the transgender student was cast by Judge Damon Keith, who first appointed to the federal bench by President Lyndon Johnson. Over his long career, Keith has issued landmark rulings ordering school desegregation; preventing housing and employment discrimination; curtailing the president’s ability to conduct warrantless surveillance; and protecting press access to post-9/11 deportation hearings. In September, Keith issued a stunning dissent from a decision allowing voter suppression—attaching to his opinion an illustrated gallery of “martyrs of the struggle for equality,” men and women who were slain for defending the right to vote.
Now, at 94, Keith has helped to uphold the dignity of a young transgender student, continuing his remarkable devotion to equality for all. He is a civil rights hero who represents everything that is good about America. Our country will always be a fairer, freer place because of Keith’s service. Those who cherish liberty owe him an immeasurable debt of gratitude.