### 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.

M ETROPOLITAN S CHOOL D ISTRICT OF M ARTINSVILLE and F RED K UTRUFF , 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 ne xt friend, mother and legal guardian, L.E., Plaintiffs-Appellees ,

v.

V IGO C OUNTY S CHOOL C ORPORATION and P RINCIPAL OF T ERRE H AUTE N ORTH V IGO H IGH S CHOOL , in his official capacity, Defendants-Appellants

.2 Nos. 22-1786 & 22-2318

____________________ Appeal from the United States District Court for the Southern District of Indian a, Terre Haute Division. No. 2:21-cv-00415-JRS-MG — James R. Sweeney, II , Judge

.

____________________

A RGUED F EBRUARY 15, 2023

— D ECIDED A UGUST 1, 2023

____________________

Before E ASTERBROOK, W OOD , and L EE , Circuit Judges

. W OOD , 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 th e three boys are transgender, the districts said no. The boys su ed the districts and the school principals, alleging sex discrimin ation in violation of Title IXof the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment. The boys also requested preliminary injunc tions 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 di strict courts in both cases granted the preliminary injuncti ons, relying on our decision in Whitaker ex rel. Whitaker v. Kenosha Uni fi ed 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 ha s furnished so far. Until then, we will stay the course and follow Whitaker . That is just whatNos. 22-1786 & 22-2318 3

the district courts did, in c rafting narrowly tailored and factbound injunctions. We a ffi rm 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 identifi ed 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 hi s social transition. A.C. receives professional medical care from the Gender Health Program at Riley Childre n’s Health, where he was diagnosed with gender dysphoria, a condition that causes himto 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 “signi fi

cant 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-a ffi rming 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 cha llenge. At the beginning of the school year A.C.’s stepfather contacted the school to ask that A.C. be granted gender-a ffi rming 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’ ba throoms because it exacerbatedhis dysphoria and exposed him as transgender to his classmates. The health clinic bathr oom 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 o ffi ce each time he used it. Martinsville did accommodate A.C. by refraining from punishing him for tardiness caus ed by his use of the health clinic bathroom. It also o ff ered A.C. the option to a tt end school entirely online, but A.C. declined. For a time, A.C. defi ed the school’s orders and used the boys’ bathrooms. He immediately felt more comfortable at school and be tt er about himself. No students raised any issues or questioned A.C.’s presence, but a sta ffmember 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 punish ed by the school because of his transgender status. This a ff ected his academic performance. Before middle school, A.C. earned good grades and was in the gifted and talented program. At Wooden, he found it di ffi cult to a tt end school. His education was disrupted, his grades fell, and he became depr essed, humiliated, and angry.Nos. 22-1786 & 22-2318 5

He tried to avoid using the ba throom while at school, which was distracting, uncomfortable, and medically dangerous.

Martinsville has an uno ffi cial policy for handling gendera ffi rming bathroom access for t ransgender 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 identi fi ed as transgender; whether the student is under a physician’s care; wh ether 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. a tt empted to show the school district that he quali fi ed for an accommodation based on these criteria, but Martinsville said the policy could not be implemented in th e district’s middle schools and refused to change its position. In December 2021, A.C. fi led this lawsuit against Martinsville and Fred Kutru ff, Wooden’s principal, seeking declaratory and injunctive relief that would assure his access to gender-a ffi rming 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 an y 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 a tt end Terre Haute North Vigo High School. They are transgender boys who socially transitioned at ag e 11, when they adopted male names, male pronouns, and traditionally masculine6 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 atthe 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 bodyhair 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 co lon conditions of the two boys. She requested that they be granted gender-a ffi rming facility access, including access to the boys’ locker rooms to change before and after gym class. B.E. and S.E. con fi rmed 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 o ffi ce. They could change for gym class only in the girls’ locker room or the health o ffi ce bathroom. B.E. and S.E. found this solution profoundly upse tt ing. Using the girls’ bathrooms and locker rooms revealed them as transgender, and they worried about upse tt ing femaleNos. 22-1786 & 22-2318 7

students who might wonder why bo ys were in those facilities. B.E. and S.E. also had problems with the unisex bathroom. It was far from their classr ooms, and the health o ffi ce was locked at unpredictable times. B.E. su ff ered at least one embarrassing accident because of his colon condition and inability to get to the health o ffi ce bathroom on time. Both boys missed time in class because th ey 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 pa inful, distracting, and medically dangerous. They dreaded going to school and su ff ered depression and humiliation. Vigo County has an o ffi cial policy regarding bathroom access for transgender students. It contemplates accommodating transgender students based on a smorgasbord of factors, including: the student’s age; th e gender marker on the birth certi fi cate; the duration of the social transition; whether the student has name and pronoun change requests on fi le with the School Corporation; the st udent’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 byother students or parents; facility restrictions; and accommodations o ff ered to other similarly situated students. At thesame time, North Vigo insisted that surgical change was required before a transgender student could use gender-a ffi rming bathrooms. That rule rend ered 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-affi rming facility access, the boys fi led this lawsuit against Vigo County School Corporation and the principal of the high school. On June 24, 2022, the distri ct 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 cour t rested its decision on theirlikelihood of success under Title IX; it did not reach their constitutional theory. Both Martinsville and Vigo Co unty 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 plainti ff“must establish that he is likely to succe ed on the merits, that he is likely to su ff er 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 ordenying 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 fi ndings 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. Whitakerand Bostock We begin by addressing the appellants’ contention that our decision in Whitaker is no longer authoritative, given a change in the law governing prel iminary injunctions or, in the alternative, given the Supreme Court’s intervening decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The plainti ff in Whitaker (A.W.) was a 17-year-old transgender boy who sued th e Kenosha (Wisconsin) Uni fi ed 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-a ffi rming facility access, however, he was told that he could use only the girls’ bathrooms or a unisex bathroom in the school’s main

o ffi ce, which was far from his classes. He felt that using the remote unisex bathroom drew undesirable a tt ention to his transgender status. Id. at 1040. Like the plainti ff s in our cases, A.W. a tt empted to restricthis 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 studentscomplained but school employees did. He sought an accommodation with evidence of his prolonged social transition, hisgender dysphoria diagnosis, and his doctor’s recommendation that he be allowed to use gender-a ffi rming 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 certi fi cate.10 Nos. 22-1786 & 22-2318

This put him up against a brick wall: under Wisconsin law, the records would not be change d 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 suicida lity, 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 insu ffi cient. Id. at 1046. We concluded that A.W. had demonstrated a likelihood of success on both his Title IX and Fourteenth Amendment claims. No tably, we did not criticize the defendant school district’s de cision 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 Amendme nt claim, we applied intermediate scrutiny to the defendant school district’s bathroom access policy, because it was “based upon a sex classi fi

cation.” Id. at 1051. We therefore required the defendants to provide an “exceedingly persuasive” justi fi cation 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 pro ff ered justi fi cation the school gavewas 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 studentswhile using the bathroom or that the stall doors in the bathrooms did not provide adequate privacy to all. Id. Finally, we a ffi rmed the district court’s balancing of theharms. 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 fi nding that the district court did not abuse its discretion by fi nding 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 o ff er three reasons why we ought to revisit that decision. First, they urge that Whitakerwas partially abrogated by Illinois Republican Party v. Pri tz ker, 973 F.3d 760 (7th Cir. 2020). Second, they point out that the Supreme Court has provided interveningguidance on how to analyze issues of transgender discrimination in Bostock . Third, they contend that Whitakerdid not adequately grapple with a provision in Title IX that permits educational institutions to “mai ntain[] separate living facilities for the di ff erent 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 under12 Nos. 22-1786 & 22-2318

which a plainti ff had to show only that he had a “be tt er 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  be tt er 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 applican t “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 a ff ected by the need to make a more comp elling showing of likelihood of success, but Whitaker is not one of them. Whitaker did not even hint that the likelihood of succe ss on the merits was a close issue or that anything hinged on the be tt er-than-negligible threshold. Furthermore, both di strict courts in the cases now before us applied the correct st andard and came out the same way, fi nding that the law and the evidentiary records established the necessary strong likelihood of success. The crucial question for the Ti tle IX theory in both of the cases now before us, just as in Whitaker , is one of law: howdoes one interpret Title IX’s prohibition against discrimination “on the basis of sex” as ap plied 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 plainti ff ’s evidentiary showing, and that an swer 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, theNos. 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. Bostockthus provides useful guidance here, even though the particular application of sex discrimination it addressed was di ff erent.

2. Bostock ThoughBostock strengthens Whitaker ’s conclusion that discrimination based on transgender status is a form of sex discrimination, the school di stricts argue that a di ff erent part of Bostock undermines Whitaker . They are referring to the Court’s decision to refrain from a ddressing how “sex-segregated bathrooms, locker rooms, and dress codes” were a ff ected by its ruling. Id. at 1753. The school district s reason that the Court exercised this restraint because it saw a fundamental di ff erence between bathroom policie s and employment decisions. From that, they conclude that Bostock ’s de fi nition 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 ma tt er our court, does this all the time. It is an important tool with which we re spect 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 it s word. When we do so, we see that it was simply focusing on“[t]he only question before [it],” which did not involve gender-a ffi rming 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 discrimin ation 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 plainti ff s are su ff ering negative consequences (for Title IX, lack of equal access to sch ool programs) for behavior that is being tolerated in male st udents who are not transgender. See id. at 1741. Our decision in Whitakerfollowed this approach.

3. Relevance of 20 U.S.C. § 1686 The last alleged fl aw in Whitakerthat 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, no thing contained herein shallbe construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the di ff erent sexes.

If Whitaker had failed to take that admonition into account, maybe there would be a problem. But it did no such thing. Whitakercited the relevant implementing regulation, 34 C.F.R. § 106.33, which a ffi rmatively permits recipients of educationalfunds to “provide separate toilet, locker room, and shower facilities” on the basis of sex, provided that the separate facilities are comparable. We noted thatneither Title IX nor its implementing regulations de fi ne 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 li tt le relevance to this appeal. Though it certainly permits the maintenance of sex-segregated facilities, we stress again that neither the plainti ff in Whitakernor the plainti ff s in these cases have any quarrel with that rule. The question is di ff erent: 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 de fi nition ofsex, as something assigned at birth or a function of chromosomal make-up. But Title IX does not de fi ne sex. Dictionary de fi nitions from around 1972 (when Title IX was passed) are equally inconclusive. See, e.g. , Black’s Law Dictionary, Sex (4th ed. 1968) (de fi ning sex narrowly as “[t]he sum of the peculiarities of structure and fun ction that distinguish a male from a female organism” and br oadly as “the character of being male or female”); Webster’s New World Dictionary, Sex (2d ed. 1972) (de fi ning sex both “with reference to ... reproductive functions” and broadly as “all the a tt ributes by which males and females are distinguished”). There is insu ffi cient evidence to support the assump tion that sex can mean only biological sex. And there is le ss certainty than meets the eye in such a de fi nition: what, for instance, should we do about someone who is intersex? There are several conditions that create discrepancies between ex ternal and internal sex markers, which can produce XX males or XY females, or other16 Nos. 22-1786 & 22-2318

chromosomal combinations su ch as XXY or XXX that a ff ect overall sexual development. Pe ople 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 th e only permissible sorting mechanism. Narrow de fi nitions of sex do no t 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 codi fi ed, 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 policie s 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 Ci rcuit has decided that denying gender-a ffi rming bathroom access can violate both Title IX and the Equal Protection Clause , while the Eleventh Circuit found no violations based on su bstantially 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 li tt le 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 bene fi cial when the circuit is an outlier and can save work for Congress and the Supreme Court by eliminating a con fl ict. Even when an overruling does not end the con fl ict, it might supply a new line of argumen t that would lead other circuits to change their posi tions 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 con fl ict 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 con fl ict is present in the majority opinion and four dissents o ff ered 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 sch ool districts have not identi fi ed 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 fi rst, and normally the most important, criterion is likelihood of success on the merits. As we noted earlier, the plainti ff s had to make a strong showing of their chance of prevailing. See Illinois Republican Party, 973 F.3d at 763. For theTitle IX claims, they had to demonstrate that they were “subjected to discrimination under any education program or activity receiving Federal fi nancial 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 contenti on is whether the school districts’ refusal to grant gender-a ffi rming facility access to the plainti ff s amounts to discrimination onthe basis of sex. Both district courts decided that the plainti ff s had made a su ffi

ciently 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 decisionsto maintain sex-segregated facilities. The courts then reasoned that an access policy thatpunished a student for their transgender identity woul d 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 plainti ff in Whitaker , they were threatened with discipline ifthey used the boys’ bathrooms. All three reported feeling depressed, humiliated, and excluded by the requirement to useNos. 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 becaus e of their distant location to [plainti ff s’] classrooms and the increased stigmatization they caused [plainti ff s].” Id. at 1050. And in A.C.’s case, o ff ering remote schooling and therefore denying a transgender student the opportunity to socialize with and learn alongside his classmates is not a true alternat ive. Further, the harms that the plainti ff s su ff ered meet Bostock ’s de fi nition of sex discrimination, which requires that the plainti ff be treated worse than a similarly situated person becaus e of sex. 140 S. Ct. at 1740.Here, the school districts persisted in treating the three plainti ff s worse than other boys beca use of their transgender status. The plainti ff s in B.E./S.E. asked the district court to include access to both bathrooms and lo cker 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 st alls in the restroom,” and communal showers were by consent carved out of the injunction. We see no clear error in the dist rict court’s factual conclusion that B.E.’s and S.E.’s locker r oom use would be comparable to their bathroom use. Vigo Coun ty argues that nothing in the district court’s injunction con fi nes the plainti ff s to the stalls,and so (it believes) B.E. and S.E. “may change in the open areas of the locker room, exposi ng their physical anatomy to their classmates, and vice versa.” But this argument is untethered to the evidentiary record. Bo th B.E. and S.E. averred that the stalls in the locker room would allow them and other20 Nos. 22-1786 & 22-2318

students to change privately, an d 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 indistinguis hable 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 lik ely success on his Fourteenth Amendment claim. Per Whitaker ’s guidance, Martinsville’s access policy relies on sex-based classi fi cations and is therefore subject to heightened scrutiny. 858 F.3d at 1051. “[A] partyseeking to uphold government action based on sex must establish an  exceedingly persuasive justi fi cation’ for the classifi cation.” Virginia , 518 U.S. at 524 (quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982)). “The justi fi

cation must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 516.

The school district a tt empted to justify its access policy by invoking the privacy concerns of other students. The districtcourt found, however, that the privacy concerns “appear[] entirely conjectural.” See also Whitaker , 858 F.3d at 1052 (“[T]heSchool District’s privacy argument is based upon sheer conjecture and abstraction.”). No students complained aboutA.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, legitima te, and clearly related to denying gender-a ffi rming facility access. But the district is fi ghting a phantom. Gender-a ffi rming 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 (7thNos. 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 thecommunal 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 identi fi ed 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 plainti ff s have received amended birth certi fi catesand 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 plainti ff 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 dist rict courts took the same approach in the injunctions they issued, properly con fi ning their analysis to the immediate problem. We also leave the door open to reasonable measures taken by the school districts to ensu re that a student genuinely needs the requested accommodati ons. Just like the plainti ff in Whitaker, A.C., B.E., and S.E. have all provided ample evidence of their medical diagnoses and the care they receive22 Nos. 22-1786 & 22-2318

from professionals to assist in th eir 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 plainti ff s’ goodfaith requests for gender-a ffi rming facility access could be questioned. Nor do these ca ses present the scenario o ff ered by Indiana and other states in their amicus brief, where only subjective “self-identi fi cation” is o ff ered as the basis for the plainti ff s’ requests. Further, nothing in the districtcourts’ injunctions restricts a school district’s ability to mo nitor 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 schooladministrators from 16 states and the District of Columbia assures us, “schools generally are adept at disciplining students for infractions of school rules,” and gender-a ffi rming access policies neither thwart rule enforcement nor increase the risk of misbehavior in bathrooms and locker rooms. We are alsounconvinced that students will take advantage of gender-affi rming facility access policies by masquerading as transgender. Based on the accounts of amici school administrators who have implemented gender-a ffi rming facility access policies, such a scenario has nevermaterialized.

2. Irreparable Harm “[P]lainti ff s seeking preliminary relief [are required] to demonstrate that irreparable inju ry is likely in the absence ofNos. 22-1786 & 22-2318 23

an injunction.” Winter , 555 U.S. at 22. Irreparable harm occurs when the “legal remedies ava ilable to the movant are inadequate.” DM Trans, LLC v. Sco tt, 38 F.4th 608, 618 (7th Cir. 2022). Both district courts determined that the plainti ff s were likely to su ff er irreparable harm, noting the similarities between the cases of A.C., B.E. and S.E. and the plainti ff in Whitaker . The school districts a tt empted to distinguish Whitaker, pointing out that A.C. did not report suicidal ideation andthat B.E. and S.E. did not show they had restricted water intake. But the district courts found those factual distinctions insigni fi cant.

We have li tt le to add to their analysis, except to note again that the district courts based th eir decisions on facts in the record, and that the school district s have not shown clear error. The plainti ff s have established that the harm they face is ongoing, debilitating, and cannot be remedied with monetary damages. Although the plainti ffin Whitakerexperienced 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 e ff ect 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 were24 Nos. 22-1786 & 22-2318

unsupported, given that high school students were granted accommodations without incident. Similarly, in B.E. , the plainti ff s 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 th e 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 in terests. And the district court in B.E. observed that the school dist rict’s insistence upon theneed for executive or congressional guidance was undermined by the fact that Whitakerhas been controlling law in theSeventh Circuit since 2017. Indeed, Vigo County crafted an effective wri tt en policy to manage gender-a ffi rming 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 fi ndings. That is enough to resolve these appeals.

III These consolidated appeals are almost indistinguishable from Whitaker . Because our reasoning in Whitakercontrols, we

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

E ASTERBROOK, Circuit Judge , concurring. GivenWhitaker v. Kenosha School District , 858 F.3d 1034 (7th Cir. 2017), this is an easy case for the plainti ff s. I am no more disposed than my colleagues to overrule Whitaker . A con fl ict among the circuits will exist no ma tt er 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’ though tful opinion, they endorse Whitaker , while I think that Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022) (en banc), be tt er understands how Title IX applies to transgender students. My colleagues express con fi dence that Title VII (the subject of Bostock v. Clayton County, 140 S. Ct. 1731 (2020)) andTitle IX use “sex” in the same way. See slip op. 13–14. The majority in Adams was equally con fi dent of the opposite proposition. I am not so sure about either view. Title IX does not de fi ne 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 invocati on of plain meaning is apt to mis fi re. 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 wh en the statute was enacted.

Indiana has elected to use a social de fi nition rather than a genetic one; the state’s judiciary has entered orders classifying all three plainti ff s as boys. Like my colleagues (see slip op. 21) I’m puzzled that the school dist ricts did not act on the logical implication of these orders. Much of life re fl ects social relations and desires rather than in structions encoded in DNA. Nurture and nature both play l arge roles in human life. Classifying as “boys” youngsters who are socially boys (even if not26 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.