In a ruling yesterday, a panel of the Seventh Circuit affirmed the grant of a preliminary injunction requiring a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But they somehow completely miss the larger point that the transgender ideology is built on sex stereotypes.
As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently not sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom.
I’ll add just a couple of additional observations:
1. According to the panel, Seventh Circuit precedent establishes a “low threshold” on the likelihood-of-success inquiry for preliminary injunctive relief. Specifically, a plaintiff seeking such relief need “only show that his chances to succeed on his claims are ‘better than negligible.’” So even the panel’s mistaken ruling should be understood as saying no more than that the student’s legal claims are “better than negligible.”
2. The panel’s embrace of the transgender ideology—namely, that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect—is evident from the outset of its opinion. We are told at the outset that the student’s request to use the boys’ restroom “is not so simple because Ash is a transgender boy.” (Emphasis added.) I wonder how many readers keep clearly in mind that that means that Ash is a girl who identifies as male. Why not instead say that the request “is not so simple because Ash is a biological female who identifies as male”? Relatedly, the opinion uses male pronouns for Ash.
