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As the U.S. Supreme Court considers whether to take a case ordering an Indiana school district to allow a transgender boy to use the facilities that align with his gender identity, the American Civil Liberties Union of Indiana is urging the high court to reject the case.
The ACLU of Indiana filed its opposition brief on Dec. 19 in Metropolitan School District of Martinsville v. A.C., a Minor Child by His Next Friend, Mother and Legal Guardian, M.C., 23-392. That case is before the justices on a cert petition filed in October by the Metropolitan School District of Martinsville.
The case has been distributed for the justices’ Jan. 5, 2024, conference.
The Martinsville school district filed the cert petition after the 7th Circuit Court of Appeals in August upheld a preliminary injunction requiring the Vigo County School Corporation and Martinsville schools to allow three transgender students to use the boys’ restrooms. Only the Martinsville school district is seeking Supreme Court review.
The Martinsville case involves A.C., a transgender student at John R. Wooden Middle School whose request to use the boys’ restrooms was denied. His mother then sued the school, alleging violations of Title IX and the equal protection clause.
The U.S. District Court for the Southern District Court of Indiana granted an injunction in A.C.’s favor in May 2022, and the 7th Circuit affirmed in a consolidated appeal also involving Vigo County schools.
In its cert petition, the Martinsville school district presented the question of whether Title IX and the equal protection clause dictate a single national policy that prohibits local schools from maintaining separate bathrooms based on students’ biological sex. It argued there is an “undeniable” circuit split on the issue that “cries out for this Court’s intervention.”
“Whichever side may have the better of the arguments, schools should not be left guessing as to what options they may lawfully consider when dealing with a question as delicate as this one,” the cert petition says. “And it is not even just a matter of bathrooms; the answer to the question presented has consequences for all manner of issues governed by Title IX, including locker rooms, housing, athletics, and more. In short, there is every reason to grant review and no compelling reason to deny it.”
But in opposing cert, the ACLU of Indiana presented the Supreme Court with three questions:
- Whether the court has jurisdiction to review a preliminary injunction that has been mooted by the plaintiff’s graduation from middle school and has also been superseded by a modified injunction for high school that petitioner has not appealed.
- Whether excluding A.C. from the middle school boys’ restrooms likely violated Title IX.
- Whether excluding A.C. from the middle school boys’ restrooms likely violated the equal protection clause.
The opposition brief then lists five reasons to deny cert, beginning with a lack of jurisdiction due to mootness.
Second, the ACLU argued the case is a “poor vehicle” for reviewing “biological sex” because Martinsville High School does not have a “biological sex” policy, and because critical facts are not in the record.
“All we know is that the high school policy is not based solely on ‘biological sex,’ that it relies on an ‘extensive list’ of factors, and that some transgender students are permitted to use restrooms associated with their gender identity,” the brief states. “But there are no further details because the now-moot preliminary injunction upheld below covered only the middle school.
“… Accordingly, even if this Court had jurisdiction, this Court should not decide significant constitutional and statutory questions on a record that contains none of the evidence other courts have found important in resolving these issues.”
In a footnote, the ACLU added, “This case is also a poor vehicle because the panel majority and Judge (Frank) Easterbrook both noted that A.C. may have a right to use the boys’ restrooms under state law because his gender marker has been changed. If state law provides relief, there is no need for this Court to expend resources reviewing federal questions that will not alter the relationship between the parties.”
Third, the ACLU argued that to the extent there is any actual split in the circuits, it is “shallow and temporary and does not warrant review.”
“In sum, there is no split on the equal protection issue, and the only disagreement on Title IX concerns the effect of a regulation that the Department of Education is about to revise,” the organization wrote. “That is a far cry from the sort of ‘square and entrenched’ split that requires this Court’s intervention.”
Fourth, the opposition argued the 7th Circuit’s decision was correct because excluding A.C. from the boys’ restrooms likely violated Title IX and the equal protection clause.
“To be sure, difference can be discomforting. The government is free to respond to that discomfort, so long as it does so without discrimination,” the brief states. “For example, Martinsville could allow students to enhance their own privacy by using the restroom in the nurse’s office if they are uncomfortable with the presence of a transgender student, or anyone else, in the common restrooms. By contrast, excluding transgender students from common spaces based on the alleged, unsubstantiated discomfort of others ‘would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as the price of attending their public school.’”
Finally, the ACLU argued there is no urgency requiring immediate review.
“This Court will have many other opportunities to address the legality of restroom exclusions,” it wrote. “But this petition — where the original injunction no longer governs the parties’ conduct and a new injunction has not even been appealed, where there are virtually no facts in the record concerning the high school’s policy, and where A.C. may in fact satisfy that policy — is not the right vehicle.”
Ken Falk, legal director for the ACLU of Indiana, released a statement announcing the brief saying, “Every family should be able to trust their child will be treated with the same rights and respect as every other student. But policies that discriminate against transgender students deny them the same chance to learn and thrive as their peers and cause them severe risk of both emotional and physical harm. Denying transgender youth equal access to school facilities does nothing to keep other students safe and instead puts transgender students themselves in danger.”
Indiana Lawyer has reached out to counsel for Martinsville schools for comment.
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