A federal appeals court has upheld a lower court ruling allowing three transgender boys in Indiana to access restrooms and locker rooms consistent with their gender identity.

On August 1, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld a preliminary injunction issued by U.S. District Judge Tanya Walton Pratt, of the Southern District of Indiana, which blocks Vigo County School Corporation and the Metropolitan School District of Martinsville from enforcing policies that would bar the students from restrooms and locker rooms designated for boys.

The lawsuit was initially filed in December 2021 by the American Civil Liberties Union and Indiana Legal Services on behalf of a transgender middle school student in Martinsville who was being barred from using gender-affirming facilities. 

Although Indiana doesn’t have a statewide law restricting transgender students from accessing gender-affirming bathrooms, at least nine other states have passed laws imposing such restrictions, according to the Movement Advancement Project, which tracks laws affecting members of the LGBTQ community. A statewide ban was proposed by Indiana last year, but, unlike in other states with Republican-controlled legislatures, it failed to advance.

All three plaintiffs in the Indiana case — referred to by the initials A.C., B.E., and S.E. in court documents — have undergone formal name changes and have amended their legal names and gender markers on their birth certificates.

In issuing the temporary injunction — which will remain in place until the lawsuit is decided on its merits — the three-judge panel found that the three students are likely to succeed in proving that they have been discriminated against based on sex and gender identity, in violation of both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, respectively.

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“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,” Judge Diane Wood wrote on behalf of the three-judge panel. “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.”

Wood noted that the circuit court was declining to opine on how Title IX or the Equal Protection Clause regulate other sex-segregated spaces, but was only narrowly looking at the issue of school restroom access. Citing existing precedent within the 7th Circuit on transgender restroom access — which stems from a 2017 decision in the case of Whitaker v. Kenosha Unified School District, in which the appeals court ruled a Wisconsin school district could not bar a transgender student from using the boys’ restrooms at school — Wood found that the court had no reason to overturn that precedent.

“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 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,” Wood wrote, rejecting the school districts’ argument that the students’ identity is based only on “self-identification.”

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“Further, nothing in the district courts’ injunctions restricts a school district’s ability to monitor student conduct in bathrooms and locker rooms,” Wood noted. “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 school-authorized 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,” Wood continued. “Based on the accounts of amici school administrators who have implemented gender-affirming facility access policies, such a scenario has never materialized.”

She also noted that lower courts had correctly determined that the three students would be “irreparably harmed” if the school districts were to bar the students from accessing gender-affirming facilities, drawing comparisons to the Whitaker case.

“The plaintiffs have established that the harm they face is ongoing, debilitating, and cannot be remedied with monetary damages,” Wood wrote. “Although the plaintiff in Whitaker experienced suicidal thoughts, that is not essential for these cases.”

Kenneth Falk, the legal director of the ACLU of Indiana, celebrated the court’s ruling.

“Students who are denied access to the appropriate facilities are caused both serious emotional and physical harm as they are denied recognition of who they are. They will often avoid using the restroom altogether while in school,” Falk said in a statement to The Hill. “Schools should be a safe place for kids and the refusal to allow a student to use the correct facilities can be extremely damaging.”

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Martinsville Superintendent Eric Bowlen told the Associated Press that the district is “reviewing the decision and evaluating available options.” 

The Vigo County School Corporation told the AP it is reviewing the decision with legal counsel.

Should the districts appeal the decision, as expected, that matter could ultimately come before the U.S. Supreme Court. Thus far, the high court has declined to intervene in cases involving transgender restroom access, although Justices Samuel Alito and Clarence Thomas have previously indicated they would take up such a case. Wood, speaking on behalf of the 7th Circuit panel, noted that the high court would likely have the last say.

“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,” she wrote.