In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 22-1786 

A.C., a minor child by his next friend, mother and legal guardian, M.C., 

Plaintiff-Appellee, 

v.

METROPOLITAN SCHOOL DISTRICT OF MARTINSVILLE and FRED 

KUTRUFF, in his official capacity as Principal of John R. 

Wooden Middle School, 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:21-cv-02965-TWP-MPB — Tanya Walton Pratt, Chief Judge. 

____________________ 

No. 22-2318 

B.E. and S.E., minor children by their next friend, mother and 

legal guardian, L.E., 

Plaintiffs-Appellees, 

v.

VIGO COUNTY SCHOOL CORPORATION and PRINCIPAL OF TERRE 

HAUTE NORTH VIGO HIGH SCHOOL, in his official capacity, 

Defendants-Appellants. 
2 Nos. 22-1786 & 22-2318 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Terre Haute Division. 

No. 2:21-cv-00415-JRS-MG — James R. Sweeney, II, Judge. 

____________________ 

ARGUED FEBRUARY 15, 2023 — DECIDED AUGUST 1, 2023 

____________________ 

Before EASTERBROOK, WOOD, and LEE, Circuit Judges. 

WOOD, Circuit Judge. A.C., B.E., and S.E. are three boys 

with a simple request: they want to use the boys’ bathrooms 

at their schools. But because the three boys are transgender, 

the districts said no. The boys sued the districts and the school 

principals, alleging sex discrimination in violation of Title IX 

of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment. The boys also 

requested preliminary injunctions that would order the 

schools to grant them access to the boys’ bathrooms and, in 

the case of B.E. and S.E., access to the boys’ locker rooms when 

changing for gym class. The district courts in both cases 

granted the preliminary injunctions, relying on our decision 

in Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 

1 Board of Education, 858 F.3d 1034 (7th Cir. 2017). 

In this consolidated appeal, the school districts invite us to 

reverse those preliminary injunctions and revisit our holding 

in Whitaker. We see no reason to do so, however. 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 will stay the course and follow Whitaker. That is just what 
Nos. 22-1786 & 22-2318 3

the district courts did, in crafting narrowly tailored and factbound injunctions. We affirm their orders. 

I 

A. A.C.’s Case 

A.C. is a 13-year-old boy who lives with his mother M.C. 

in Martinsville, Indiana. A.C. is transgender and has identified as a boy since he was about eight years old. He socially 

transitioned when he was nine, meaning he began going by a 

male name, using male pronouns, and adopting a typically 

masculine haircut and clothing. He has never wavered from 

this identity since his social transition. 

A.C. receives professional medical care from the Gender 

Health Program at Riley Children’s Health, where he was diagnosed with gender dysphoria, a condition that causes him 

to experience “a marked incongruence between [his] experienced/expressed gender and [his] assigned gender.” American Psychiatric Ass’n, Diagnostic and Statistical Manual 452 

(5th ed. 2013). A.C.’s gender dysphoria comes with “significant distress, depression, and anxiety.” He receives therapy 

as well as prescribed hormonal suppression drugs that block 

his menstruation. He intends to begin testosterone supplements, which will further masculinize his appearance, once 

he is able. Additionally, the Indiana courts have authorized 

both a legal name change and a gender-marker change for 

him. A.C. and his medical care providers agree that being 

treated as a boy is the best way to ameliorate his depression 

and anxiety. This includes access to bathrooms and facilities 

that are consistent with his experienced gender identity. We 

refer to this as gender-affirming facility access. 
4 Nos. 22-1786 & 22-2318 

In 2021 A.C. began seventh grade at John R. Wooden Middle School in the Metropolitan School District of Martinsville, 

Indiana. The school maintains sex-segregated bathrooms—a 

practice that A.C. does not challenge. At the beginning of the 

school year A.C.’s stepfather contacted the school to ask that 

A.C. be granted gender-affirming bathroom access. The 

school refused and said that A.C. had to use either the girls’ 

bathrooms or the unisex bathroom in the health clinic. But 

A.C. could not use the girls’ bathrooms because it exacerbated 

his dysphoria and exposed him as transgender to his classmates. The health clinic bathroom was unsatisfactory because 

it was far from A.C.’s classes and stigmatized him. A.C. had 

to ask permission and sign into the health office each time he 

used it. 

Martinsville did accommodate A.C. by refraining from 

punishing him for tardiness caused by his use of the health 

clinic bathroom. It also offered A.C. the option to attend 

school entirely online, but A.C. declined. For a time, A.C. defied the school’s orders and used the boys’ bathrooms. He immediately felt more comfortable at school and better about 

himself. No students raised any issues or questioned A.C.’s 

presence, but a staff member reported him. The school responded by telling A.C. that he would be disciplined if he 

continued using the boys’ bathrooms. 

A.C. felt isolated and punished by the school because of 

his transgender status. This affected his academic performance. Before middle school, A.C. earned good grades and 

was in the gifted and talented program. At Wooden, he found 

it difficult to attend school. His education was disrupted, his 

grades fell, and he became depressed, humiliated, and angry. 
Nos. 22-1786 & 22-2318 5

He tried to avoid using the bathroom while at school, which 

was distracting, uncomfortable, and medically dangerous. 

Martinsville has an unofficial policy for handling genderaffirming bathroom access for transgender students at the 

high school level. The district evaluates each bathroom-access 

request based on an extensive list of factors: the length of time 

the student has identified as transgender; whether the student 

is under a physician’s care; whether the student has been diagnosed with gender dysphoria; whether the student receives 

hormone treatment; and whether the student has received a 

legal name change or gender-marker change. A.C. attempted 

to show the school district that he qualified for an accommodation based on these criteria, but Martinsville said the policy 

could not be implemented in the district’s middle schools and 

refused to change its position. 

In December 2021, A.C. filed this lawsuit against Martinsville and Fred Kutruff, Wooden’s principal, seeking declaratory and injunctive relief that would assure his access to gender-affirming bathrooms. On April 29, 2022, the district court 

granted A.C.’s motion for a preliminary injunction and issued 

the mandatory stand-alone order on May 19, 2022. See Fed. R. 

Civ. P. 65(d). The injunction prohibited Martinsville from 

“stopping, preventing, or in any way interfering with A.C. 

freely using any boys’ restroom.” 

B. B.E. & S.E.’s Cases 

B.E. and S.E. are 15-year-old twins who live in Terre 

Haute, Indiana, with their mother L.E. They attend Terre 

Haute North Vigo High School. They are transgender boys 

who socially transitioned at age 11, when they adopted male 

names, male pronouns, and traditionally masculine 
6 Nos. 22-1786 & 22-2318 

appearances. Like A.C., both B.E. and S.E. were diagnosed 

with gender dysphoria and are receiving professional care at 

the Riley Gender Health Clinic. Under the Clinic’s supervision, the boys have received testosterone treatment since November 2021. This treatment causes the cessation of menstruation and the development of deeper voices, facial and body 

hair growth, and increased muscle mass. B.E. and S.E. obtained legal name changes and gender-marker changes in Indiana state court. Unrelated to their gender identity, both B.E. 

and S.E. have a condition that impedes colon function and requires them to take laxatives, making bathroom access a particularly sensitive issue. 

The twins used the boys’ bathrooms at North Vigo at the 

beginning of the 2021–2022 school year; no students raised 

concerns about their presence there. School employees, however, informally reprimanded B.E. and S.E. and told them not 

to use the boys’ bathrooms again. Their mother had a meeting 

with the vice principal to alert the school to both the gender 

dysphoria diagnoses and the colon conditions of the two 

boys. She requested that they be granted gender-affirming facility access, including access to the boys’ locker rooms to 

change before and after gym class. B.E. and S.E. confirmed 

that they planned to use the stalls in the locker room to change 

in privacy and did not seek access to the locker room showers. 

The school denied their request; it instructed them to use either the girls’ bathrooms or the unisex bathroom in the 

school’s health office. They could change for gym class only 

in the girls’ locker room or the health office bathroom. 

B.E. and S.E. found this solution profoundly upsetting. Using the girls’ bathrooms and locker rooms revealed them as 

transgender, and they worried about upsetting female 
Nos. 22-1786 & 22-2318 7

students who might wonder why boys were in those facilities. 

B.E. and S.E. also had problems with the unisex bathroom. It 

was far from their classrooms, and the health office was 

locked at unpredictable times. B.E. suffered at least one embarrassing accident because of his colon condition and inability to get to the health office bathroom on time. Both boys 

missed time in class because they had to use a remote bathroom, and they felt stigmatized by the requirement. As a result, they tried to avoid using the bathroom while at school—

again, a practice that is painful, distracting, and medically 

dangerous. They dreaded going to school and suffered depression and humiliation. 

Vigo County has an official policy regarding bathroom access for transgender students. It contemplates accommodating transgender students based on a smorgasbord of factors, 

including: the student’s age; the gender marker on the birth 

certificate; the duration of the social transition; whether the 

student has name and pronoun change requests on file with 

the School Corporation; the student’s gender dysphoria diagnosis; the receipt of hormone treatment; the duration of hormone treatment; the receipt of other transition-related medical procedures; other medical conditions; concerns raised by 

other students or parents; facility restrictions; and accommodations offered to other similarly situated students. At the 

same time, North Vigo insisted that surgical change was required before a transgender student could use gender-affirming bathrooms. That rule rendered most of the policy nugatory—Indiana prohibits such surgery for patients younger 

than 18 (the great majority of high school students), and some 

transgender persons opt not to undergo surgical transition 

given the risks and costs of the procedure. See Whitaker, 858 

F.3d at 1041. 
8 Nos. 22-1786 & 22-2318 

After North Vigo refused to grant B.E. and S.E. gender-affirming facility access, the boys filed this lawsuit against Vigo 

County School Corporation and the principal of the high 

school. On June 24, 2022, the district court granted their motion for a preliminary injunction and issued a stand-alone order compelling the school district to provide B.E. and S.E. 

“with access to the boys’ restrooms and locker room, excluding the showers.” The district court rested its decision on their 

likelihood of success under Title IX; it did not reach their constitutional theory. 

Both Martinsville and Vigo County appealed the issuance 

of the preliminary injunctions. At the request of the parties, 

we consolidated the cases on appeal. 

II 

For a preliminary injunction to issue, a plaintiff “must establish that he is likely to succeed on the merits, that he is 

likely to suffer irreparable harm in the absence of preliminary 

relief, that the balance of equities tips in his favor, and that an 

injunction is in the public interest.” Winter v. Natural Resources 

Defense Council, Inc., 555 U.S. 7, 20 (2008). Orders granting or 

denying preliminary injunctive relief are immediately appealable. 28 U.S.C. § 1292(a)(1). Our review depends on the kind 

of issue we are considering: “[w]e review the district court’s 

findings of fact for clear error, its legal conclusions de novo, 

and its balancing of the factors for a preliminary injunction 

for abuse of discretion.” Doe v. University of Southern Indiana, 

43 F.4th 784, 791 (7th Cir. 2022) (alteration in original) (quoting D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016)). 
Nos. 22-1786 & 22-2318 9

A. Whitaker and Bostock

We begin by addressing the appellants’ contention that 

our decision in Whitaker is no longer authoritative, given a 

change in the law governing preliminary injunctions or, in the 

alternative, given the Supreme Court’s intervening decision 

in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). 

The plaintiff in Whitaker (A.W.) was a 17-year-old 

transgender boy who sued the Kenosha (Wisconsin) Unified 

School District, alleging that the refusal to allow him to use 

the boys’ bathrooms violated his rights under Title IX and the 

Fourteenth Amendment. Whitaker, 858 F.3d at 1042. A.W. socially transitioned when he was 13 and received professional 

care for gender dysphoria. When he sought gender-affirming 

facility access, however, he was told that he could use only the 

girls’ bathrooms or a unisex bathroom in the school’s main 

office, which was far from his classes. He felt that using the 

remote unisex bathroom drew undesirable attention to his 

transgender status. Id. at 1040. 

Like the plaintiffs in our cases, A.W. attempted to restrict 

his water intake in order to avoid any bathroom use. This exacerbated a preexisting medical condition—vasovagal syncope—making him susceptible to headaches, fainting, and 

seizures. He tried ignoring the school’s orders and using the 

boys’ bathrooms. Again as in the present case, no students 

complained but school employees did. He sought an accommodation with evidence of his prolonged social transition, his 

gender dysphoria diagnosis, and his doctor’s recommendation that he be allowed to use gender-affirming facilities, but 

to no avail. The school district insisted that A.W. had to update his gender in the school’s records, which the school 

would do only if he provided an amended birth certificate. 
10 Nos. 22-1786 & 22-2318 

This put him up against a brick wall: under Wisconsin law, 

the records would not be changed without surgical transition, 

but those procedures are unavailable to minors, risky, and expensive. A.W. reported feeling distressed, depressed, and suicidal as a result. See id. at 1041–42, 1053. 

We held that A.W.’s worsening mental and physical 

health, coupled with his suicidality, meant that the harm was 

irreparable and could not be adequately remedied at law. Id. 

at 1045–46. We added that since this was not a “typical tort 

action” about past harm, but instead a case where the harms 

were prospective and ongoing, that monetary damages 

would be insufficient. Id. at 1046. We concluded that A.W. had 

demonstrated a likelihood of success on both his Title IX and 

Fourteenth Amendment claims. Notably, we did not criticize 

the defendant school district’s decision to maintain sex-segregated bathrooms. Our focus was on the district’s policy for 

“decid[ing] which bathroom a student may use.” Id. at 1051. 

For the Title IX claim, we were guided by analogy to Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989), and its holding that 

discrimination based on sex-stereotyping violates Title VII of 

the Civil Rights Act of 1964. Whitaker, 858 F.3d at 1047. We 

reasoned that “[a] policy that requires an individual to use a 

bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.” Id. at 1049. 

For A.W.’s Fourteenth Amendment claim, we applied intermediate scrutiny to the defendant school district’s bathroom access policy, because it was “based upon a sex classification.” Id. at 1051. We therefore required the defendants to 

provide an “exceedingly persuasive” justification for their 

policy. Id. at 1051–52 (quoting United States v. Virginia, 518 U.S. 
Nos. 22-1786 & 22-2318 11

515, 533 (1996)). The proffered justification the school gave 

was the need “to protect the privacy rights of all 22,160 students.” Id. at 1052. We found this unconvincing (more or less 

the opposite of “exceedingly persuasive”) because there was 

no evidence that A.W. was less discreet than other students 

while using the bathroom or that the stall doors in the bathrooms did not provide adequate privacy to all. Id. 

Finally, we affirmed the district court’s balancing of the 

harms. The school district’s claims of harm were “speculative,” especially because, prior to the lawsuit, A.W. had used 

the boys’ bathrooms for almost six months without incident. 

This supported a finding that the district court did not abuse 

its discretion by finding that the privacy rights of other students were not invaded and that no other negative consequences materialized. Id. at 1054. 

Whitaker answers almost all the questions raised by these 

consolidated appeals. But the school districts offer three reasons why we ought to revisit that decision. First, they urge 

that Whitaker was partially abrogated by Illinois Republican 

Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020). Second, they 

point out that the Supreme Court has provided intervening 

guidance on how to analyze issues of transgender discrimination in Bostock. Third, they contend that Whitaker did not adequately grapple with a provision in Title IX that permits educational institutions to “maintain[] separate living facilities 

for the different sexes.” 20 U.S.C. § 1686. We address those arguments in turn. 

1. Standard for Likelihood of Success on Merits 

In Whitaker, we applied the now-abrogated standard for 

evaluating the likelihood of success on the merits under 
12 Nos. 22-1786 & 22-2318 

which a plaintiff had to show only that he had a “better than 

negligible” chance of success on the merits. 858 F.3d at 1046. 

That standard is now gone. In Nken v. Holder, in the closely 

related context of a stay pending judicial review, the Supreme 

Court went out of its way to say that “[i]t is not enough that 

the chance of success on the merits be better than negligible.’” 

556 U.S. 418, 434 (2009). Adhering to that guidance in Illinois 

Republican Party, we concluded that the showing must be a 

strong one, though the applicant “need not show that [he] definitely will win the case.” 973 F.3d at 763. The school districts 

contend that this shift has weakened Whitaker’s authoritative 

value. 

Perhaps there are some cases that have been affected by 

the need to make a more compelling showing of likelihood of 

success, but Whitaker is not one of them. Whitaker did not even 

hint that the likelihood of success on the merits was a close 

issue or that anything hinged on the better-than-negligible 

threshold. Furthermore, both district courts in the cases now 

before us applied the correct standard and came out the same 

way, finding that the law and the evidentiary records established the necessary strong likelihood of success. 

 The crucial question for the Title IX theory in both of the 

cases now before us, just as in Whitaker, is one of law: how 

does one interpret Title IX’s prohibition against discrimination “on the basis of sex” as applied to transgender people? In 

Whitaker, we answered that discrimination against 

transgender students is a form of sex discrimination. Our answer to that legal question did not depend on the plaintiff’s 

evidentiary showing, and that answer does not change with a 

more rigorous threshold for success on the merits. It is also 

telling that, in the closely related area of Title VII law, the 
Nos. 22-1786 & 22-2318 13

Supreme Court held in Bostock that discrimination based on 

transgender status is a form of sex discrimination. 140 S. Ct. 

at 1744. Both Title VII, at issue in Bostock, and Title IX, at issue 

here and in Whitaker, involve sex stereotypes and less favorable treatment because of the disfavored person’s sex. Bostock 

thus provides useful guidance here, even though the particular application of sex discrimination it addressed was different. 

2. Bostock

Though Bostock strengthens Whitaker’s conclusion that discrimination based on transgender status is a form of sex discrimination, the school districts argue that a different part of 

Bostock undermines Whitaker. They are referring to the Court’s 

decision to refrain from addressing how “sex-segregated 

bathrooms, locker rooms, and dress codes” were affected by 

its ruling. Id. at 1753. The school districts reason that the Court 

exercised this restraint because it saw a fundamental difference between bathroom policies and employment decisions. 

From that, they conclude that Bostock’s definition of sex discrimination does not apply in the bathroom context. 

That is reading quite a bit into a statement that says, in 

essence, “we aren’t reaching this point.” The Supreme Court, 

and for that matter our court, does this all the time. It is an 

important tool with which we respect the principles of party 

presentation, see United States v. Sineneng-Smith, 140 S. Ct. 

1575, 1579 (2020), and incremental development of the law. It 

is best to take the Court at its word. When we do so, we see 

that it was simply focusing on “[t]he only question before 

[it],” which did not involve gender-affirming bathroom access. Bostock, 140 S. Ct. at 1753. 
14 Nos. 22-1786 & 22-2318 

Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes, just as it is for 

Title VII purposes. As Bostock instructs, we ask whether our 

three plaintiffs are suffering negative consequences (for Title 

IX, lack of equal access to school programs) for behavior that 

is being tolerated in male students who are not transgender. 

See id. at 1741. Our decision in Whitaker followed this approach. 

3. Relevance of 20 U.S.C. § 1686 

The last alleged flaw in Whitaker that the school districts 

see is its supposed failure to mention 20 U.S.C. § 1686. That 

statute, which is part of Title IX, reads as follows: 

Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall 

be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes. 

If Whitaker had failed to take that admonition into account, 

maybe there would be a problem. But it did no such thing. 

Whitaker cited the relevant implementing regulation, 34 C.F.R. 

§ 106.33, which affirmatively permits recipients of educational 

funds to “provide separate toilet, locker room, and shower facilities” on the basis of sex, provided that the separate facilities are comparable. We noted that neither Title IX nor its implementing regulations define the term “sex,” and in looking 

to case law for guidance, we saw nothing to suggest that “sex” 

referred only to biological sex. Whitaker, 858 F.3d at 1047. We 

concluded that bathroom-access policies that engaged in sex-
Nos. 22-1786 & 22-2318 15

stereotyping could violate Title IX, notwithstanding 34 C.F.R. 

§ 106.33. 

Similarly, section 1686 is of little relevance to this appeal. 

Though it certainly permits the maintenance of sex-segregated facilities, we stress again that neither the plaintiff in 

Whitaker nor the plaintiffs in these cases have any quarrel with 

that rule. The question is different: who counts as a “boy” for 

the boys’ rooms, and who counts as a “girl” for the girls’ 

rooms—essentially, how do we sort by gender? The statute 

says nothing on this topic, and so nothing we say here risks 

rendering section 1686 a nullity. 

We also reject the notion that Whitaker (and perhaps Bostock itself) make it impossible to have “truly sex-separated 

bathrooms.” That argument presupposes one definition of 

sex, as something assigned at birth or a function of chromosomal make-up. But Title IX does not define sex. Dictionary 

definitions from around 1972 (when Title IX was passed) are 

equally inconclusive. See, e.g., Black’s Law Dictionary, Sex

(4th ed. 1968) (defining sex narrowly as “[t]he sum of the peculiarities of structure and function that distinguish a male 

from a female organism” and broadly as “the character of being male or female”); Webster’s New World Dictionary, Sex

(2d ed. 1972) (defining sex both “with reference to ... reproductive functions” and broadly as “all the attributes by which 

males and females are distinguished”). There is insufficient 

evidence to support the assumption that sex can mean only 

biological sex. And there is less certainty than meets the eye 

in such a definition: what, for instance, should we do about 

someone who is intersex? There are several conditions that 

create discrepancies between external and internal sex markers, which can produce XX males or XY females, or other 
16 Nos. 22-1786 & 22-2318 

chromosomal combinations such as XXY or XXX that affect 

overall sexual development. People with this genetic makeup are entitled to Title IX’s protections, and an educational 

institution’s policy for facility access would fail to account for 

them if biological sex were the only permissible sorting mechanism. Narrow definitions of sex do not account for the complexity of the necessary inquiry. 

The implementing regulations do not provide much additional guidance. When 34 C.F.R. § 106.33 was codified, it was 

published without public comment because it was viewed as 

working “no substantive changes.” Department of Education, 

Establishment of Title 34, 45 Fed. Reg. 30802, 30802 (May 9, 

1980). With no indication that 34 C.F.R. § 106.33 was meant to 

cover any more ground than 20 U.S.C. § 1686, we reject the 

school districts’ presupposition that separate facilities for the 

sexes forecloses access policies based on gender identity. 

Nothing in section 1686 requires this outcome. 

4. Existing Circuit Split 

Finally, there is already a circuit split on the issues raised 

in this appeal. The Fourth Circuit has decided that denying 

gender-affirming bathroom access can violate both Title IX 

and the Equal Protection Clause, while the Eleventh 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. Johns 

County, 57 F.4th 791 (11th Cir. 2022) (en banc).

It makes little sense for us to jump from one side of the 

circuit split to the other, particularly in light of the intervening 

guidance in Bostock. As we have noted before: 
Nos. 22-1786 & 22-2318 17

Overruling circuit law can be beneficial when the circuit is an outlier and can save work for Congress and 

the Supreme Court by eliminating a conflict. Even 

when an overruling does not end the conflict, it might 

supply a new line of argument that would lead other 

circuits to change their positions in turn. Finally, overruling is more appropriate when prevailing doctrine 

works a substantial injury. 

Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009) (en 

banc). 

These factors do not weigh in favor of overruling Whitaker. 

We cannot resolve the conflict between the Fourth and Eleventh Circuits on our own. Nor can we supply a new line of 

argument. Much of what is needed to resolve this conflict is 

present in the majority opinion and four dissents offered by 

the Eleventh Circuit in Adams; neither party here has broken 

new ground. Finally, consistency on our part does not cause 

a serious harm. Whitaker has been the governing decision in 

our circuit since 2017, and the school districts have not identified any substantial injuries it has caused. As a result, 

“[o]verruling would not be consistent with a proper regard 

for the stability of our decisions.” Id. at 565. 

B. Preliminary Injunctions 

Having resolved the question of Whitaker’s authoritative 

value, we are now free to apply it to these cases. We address 

the factors governing a preliminary injunction—likelihood of 

success on the merits, irreparable harm, and the balance of equities, including the public interest—in that order. 
18 Nos. 22-1786 & 22-2318 

1. Likelihood of Success on the Merits 

The first, and normally the most important, criterion is 

likelihood of success on the merits. As we noted earlier, the 

plaintiffs had to make a strong showing of their chance of prevailing. See Illinois Republican Party, 973 F.3d at 763. For the 

Title IX claims, they had to demonstrate that they were “subjected to discrimination under any education program or activity receiving Federal financial assistance,” and that this discriminatory treatment was “on the basis of sex.” 20 U.S.C. 

§ 1681(a). For the Equal Protection Clause (involved in only 

A.C.’s case), they had to show intentional discrimination on 

the basis of sex. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 

130–31 (1994). 

It is not disputed that Wooden Middle School and North 

Vigo High School receive federal funding and are covered by 

Title IX. The point of contention is whether the school districts’ refusal to grant gender-affirming facility access to the 

plaintiffs amounts to discrimination on the basis of sex. Both 

district courts decided that the plaintiffs had made a sufficiently strong showing of sex discrimination. We see no errors 

in those conclusions. 

Using Whitaker as a guide, both district courts evaluated 

the school districts’ facility access policies, not their decisions 

to maintain sex-segregated facilities. The courts then reasoned that an access policy that punished a student for their 

transgender identity would violate Title IX, see Whitaker, 858 

F.3d at 1049, and that A.C., B.E., and S.E. all showed they were 

punished by the school districts’ access policies. Like the 

plaintiff in Whitaker, they were threatened with discipline if 

they used the boys’ bathrooms. All three reported feeling depressed, humiliated, and excluded by the requirement to use 
Nos. 22-1786 & 22-2318 19

either the girls’ bathrooms or the unisex bathroom. B.E. and 

S.E. were also placed at an increased risk of not making it to 

the bathroom on time because of their colon conditions. As a 

result, just as in Whitaker, the “gender-neutral alternatives 

were not true alternatives because of their distant location to 

[plaintiffs’] classrooms and the increased stigmatization they 

caused [plaintiffs].” Id. at 1050. And in A.C.’s case, offering remote schooling and therefore denying a transgender student 

the opportunity to socialize with and learn alongside his 

classmates is not a true alternative. Further, the harms that the 

plaintiffs suffered meet Bostock’s definition of sex discrimination, which requires that the plaintiff be treated worse than a 

similarly situated person because of sex. 140 S. Ct. at 1740. 

Here, the school districts persisted in treating the three plaintiffs worse than other boys because of their transgender status. 

The plaintiffs in B.E./S.E. asked the district court to include 

access to both bathrooms and locker rooms in the injunction, 

and the court obliged. It reasoned that the “distinction” between bathrooms and locker rooms was “immaterial,” particularly since B.E. and S.E. “would use the stalls in the locker 

room, just as they used the stalls in the restroom,” and communal showers were by consent carved out of the injunction. 

We see no clear error in the district court’s factual conclusion 

that B.E.’s and S.E.’s locker room use would be comparable to 

their bathroom use. Vigo County argues that nothing in the 

district court’s injunction confines the plaintiffs to the stalls, 

and so (it believes) B.E. and S.E. “may change in the open areas of the locker room, exposing their physical anatomy to 

their classmates, and vice versa.” But this argument is untethered to the evidentiary record. Both B.E. and S.E. averred that 

the stalls in the locker room would allow them and other 
20 Nos. 22-1786 & 22-2318 

students to change privately, and that students do not disrobe 

entirely or use the locker room showers during the school 

day. As a result, the district court’s conclusion that locker 

room use would be indistinguishable from bathroom use in 

this instance is not clearly erroneous. 

The district court in A.C.’s case also decided that A.C. had 

made a strong showing of likely success on his Fourteenth 

Amendment claim. Per Whitaker’s guidance, Martinsville’s access policy relies on sex-based classifications and is therefore 

subject to heightened scrutiny. 858 F.3d at 1051. “[A] party 

seeking to uphold government action based on sex must establish an exceedingly persuasive justification’ for the classification.” Virginia, 518 U.S. at 524 (quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982)). “The justification must be genuine, not hypothesized or invented post hoc

in response to litigation.” Id. at 516. 

The school district attempted to justify its access policy by 

invoking the privacy concerns of other students. The district 

court found, however, that the privacy concerns “appear[] entirely conjectural.” See also Whitaker, 858 F.3d at 1052 (“[T]he 

School District’s privacy argument is based upon sheer conjecture and abstraction.”). No students complained about 

A.C.’s use of the bathroom. Martinsville insists that such evidence is unnecessary and that the privacy interest in protecting students from “exposure of their bodies to the opposite 

sex” is long-protected, legitimate, and clearly related to denying gender-affirming facility access. But the district is fighting 

a phantom. Gender-affirming facility access does not implicate the interest in preventing bodily exposure, because there 

is no such exposure. This is unlike the nudity ordinance that 

we contemplated in Tagami v. City of Chicago, 875 F.3d 375 (7th 
Nos. 22-1786 & 22-2318 21

Cir. 2017), where bodily exposure was expressly and directly 

at issue. There is no evidence that any students will be exposed to A.C. or vice versa. “Common sense tells us that the 

communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true 

privacy concerns are able to utilize a stall.” Whitaker, 858 F.3d 

at 1052. Martinsville has not identified how A.C.’s presence 

behind the door of a bathroom stall threatens student privacy. 

In addition to the likelihood of success on the Title IX and 

equal protection claims, we note also that the school districts 

in these two cases may be violating Indiana law. Given that 

all three plaintiffs have received amended birth certificates 

and legal name changes that identify them as boys, they appear to be boys in the eyes of the State of Indiana. If so, then 

it would be contrary to Indiana law for the school districts to 

treat A.C., B.E., and S.E. as though they are not boys and to 

require them to use the girls’ bathrooms and locker rooms. 

But no plaintiff has pursued this theory of state-law violation, 

and so we do not explore it further. 

We add a few words about the scope of our decision. First, 

we are addressing only the issue before us. We express no 

opinion on how Title IX or the Equal Protection Clause regulates other sex-segregated living facilities, educational programs, or sports teams. The district courts took the same approach in the injunctions they issued, properly confining their 

analysis to the immediate problem. 

We also leave the door open to reasonable measures taken 

by the school districts to ensure that a student genuinely 

needs the requested accommodations. Just like the plaintiff in 

Whitaker, A.C., B.E., and S.E. have all provided ample evidence of their medical diagnoses and the care they receive 
22 Nos. 22-1786 & 22-2318 

from professionals to assist in their transitions. They have also 

demonstrated that their gender identities are enduring. All 

three have legal name changes and gender-marker changes. 

B.E. and S.E. have been receiving testosterone treatment for 

over a year. These are not cases where the plaintiffs’ goodfaith requests for gender-affirming facility access could be 

questioned. Nor do these cases present the scenario offered 

by Indiana and other states in their amicus brief, where only 

subjective “self-identification” is offered as the basis for the 

plaintiffs’ requests. 

Further, nothing in the district courts’ injunctions restricts 

a school district’s ability to monitor student conduct in bathrooms and locker rooms. If a student enters a girls’ locker 

room and engages in misconduct, that student has violated 

school rules regardless of whether the student is a girl who is 

properly in the space, a boy who is improperly in the space, 

or a boy who pretends to be a transgender girl to gain schoolauthorized access to the space. As the amicus brief of school 

administrators from 16 states and the District of Columbia assures us, “schools generally are adept at disciplining students 

for infractions of school rules,” and gender-affirming access 

policies neither thwart rule enforcement nor increase the risk 

of misbehavior in bathrooms and locker rooms. We are also 

unconvinced that students will take advantage of gender-affirming facility access policies by masquerading as 

transgender. Based on the accounts of amici school administrators who have implemented gender-affirming facility access policies, such a scenario has never materialized. 

2. Irreparable Harm 

“[P]laintiffs seeking preliminary relief [are required] to 

demonstrate that irreparable injury is likely in the absence of 
Nos. 22-1786 & 22-2318 23

an injunction.” Winter, 555 U.S. at 22. Irreparable harm occurs 

when the “legal remedies available to the movant are inadequate.” DM Trans, LLC v. Scott, 38 F.4th 608, 618 (7th Cir. 

2022). 

Both district courts determined that the plaintiffs were 

likely to suffer irreparable harm, noting the similarities between the cases of A.C., B.E. and S.E. and the plaintiff in Whitaker. The school districts attempted to distinguish Whitaker, 

pointing out that A.C. did not report suicidal ideation and 

that B.E. and S.E. did not show they had restricted water intake. But the district courts found those factual distinctions 

insignificant. 

We have little to add to their analysis, except to note again 

that the district courts based their decisions on facts in the record, and that the school districts have not shown clear error. 

The plaintiffs have established that the harm they face is ongoing, debilitating, and cannot be remedied with monetary 

damages. Although the plaintiff in Whitaker experienced suicidal thoughts, that is not essential for these cases. 

3. Balance of Equities and the Public Interest 

Before issuing an injunction, courts are required to “balance the competing claims of injury” and “consider the effect 

on each party of the granting or withholding of the requested 

relief.” Winter, 555 U.S. at 24 (quoting Amoco Production Co. v. 

Village of Gambell, 480 U.S. 531, 542 (1987)). This includes “particular regard for the public consequences” should the preliminary injunction be issued. Id. (quoting Weinberger v. 

Romero-Barcelo, 456 U.S. 305, 312 (1982)). 

Both district courts found the school districts’ claims of injury unconvincing. In A.C., Martinsville’s claims of harm were 
24 Nos. 22-1786 & 22-2318 

unsupported, given that high school students were granted 

accommodations without incident. Similarly, in B.E., the 

plaintiffs had used the boys’ bathrooms at the beginning of 

the year without incident and there was no evidence of harm 

to Vigo County in the record. The records showed only speculative harms, which are not enough to tip the balance. See 

Whitaker, 858 F.3d at 1054. 

The district courts also agreed that the public interest 

weighed in favor of issuing the injunctions. They noted that 

protecting civil and constitutional rights is in the public interest, and they saw no harm to the public. The district court in 

A.C. acknowledged the importance of individual privacy interests to the public, but A.C.’s presence in the boys’ bathroom 

did not threaten those privacy interests. And the district court 

in B.E. observed that the school district’s insistence upon the 

need for executive or congressional guidance was undermined by the fact that Whitaker has been controlling law in the 

Seventh Circuit since 2017. Indeed, Vigo County crafted an effective written policy to manage gender-affirming facility access despite the lack of additional rulemaking or legislation. 

There was no abuse of discretion in this balancing of the 

equities and the public interest. Nor do we see either legal error in the underlying analysis or clear error in any of the supporting factual findings. That is enough to resolve these appeals. 

III 

These consolidated appeals are almost indistinguishable 

from Whitaker. Because our reasoning in Whitaker controls, we 

AFFIRM the orders granting the plaintiffs’ motions for preliminary injunctions. 
Nos. 22-1786 & 22-2318 25 

EASTERBROOK, Circuit Judge, concurring. Given Whitaker v. 

Kenosha School District, 858 F.3d 1034 (7th Cir. 2017), this is an 

easy case for the plaintiffs. I am no more disposed than my 

colleagues to overrule Whitaker. A conflict among the circuits 

will exist no matter what happens in the current suits. The Supreme Court or Congress could produce a nationally uniform 

approach; we cannot. 

I concur only in the judgment, however, because, although 

I admire my colleagues’ thoughtful opinion, they endorse

Whitaker, while I think that Adams v. St. Johns County School 

Board, 57 F.4th 791 (11th Cir. 2022) (en banc), better understands how Title IX applies to transgender students. 

My colleagues express confidence that Title VII (the subject of Bostock v. Clayton County, 140 S. Ct. 1731 (2020)) and 

Title IX use “sex” in the same way. See slip op. 13–14. The majority in Adams was equally confident of the opposite proposition. I am not so sure about either view. Title IX does not 

define the word, which can refer to biological sex (encoded in 

a person’s genes) or to social relations (gender). Sex is such a 

complex subject that any invocation of plain meaning is apt to 

misfire. I think, however, that Adams is closer to the mark in 

concluding that “sex” in Title IX has a genetic sense, given 

that word’s normal usage when the statute was enacted. 

Indiana has elected to use a social definition rather than a 

genetic one; the state’s judiciary has entered orders classifying 

all three plaintiffs as boys. Like my colleagues (see slip op. 21) 

I’m puzzled that the school districts did not act on the logical 

implication of these orders. Much of life reflects social relations and desires rather than instructions encoded in DNA. 

Nurture and nature both play large roles in human life. Classifying as “boys” youngsters who are socially boys (even if not 
26 Nos. 22-1786 & 22-2318

genetically male) is an act of kindness without serious costs to 

third parties. But if Title IX uses the word “sex” in the genetic 

sense, then federal law does not compel states to do this.