The Court of Appeals for the 6th Circuit rejected an appeal by the Highland School District (Ohio) of a lower court's order that the district allow an eleven-year-old transgender girl use the bathroom appropriate for her gender identity.
Under 6th Circuit precedent, the ruling was not a difficult one. Title IX prohibits “sex discrimination,” and the Supreme Court has held that sex discrimination includes sex stereotyping. Under 6th Circuit precedent, discriminating against an individual for “fail[ing] to act and/or identity with his or her gender” constitutes impermissible sex stereotyping. When a school mistreats a transgender student, it is effectively punishing her for failing to identify with the gender she was assigned at birth. That constitutes sex stereotyping, and thus unlawful sex discrimination under Title IX.
There is one problem: In August, the Supreme Court blocked a nearly identical 4th Circuit ruling from taking effect while the justices reviewed the case. But, as the majority explained, that decision hinged on Justice Stephen Breyer’s desire to “preserve the status quo” while the appeal was pending. In that case, preserving the status quo meant continuing to exclude a transgender student from the proper bathroom. But in this case, preserving the status quo meant continuing to allow the transgender plaintiff to use the right bathroom, since she was already permitted to do so due to the lower court’s order. By safeguarding the eleven-year-old’s access to the bathroom, the court effectively “maintained the status quo as opposed to disrupting it.” Moreover, revoking bathroom access for the plaintiff, whom the court calls Doe, could only serve to harm her:
The record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.
Judge Jeffrey Sutton dissented, coming up with an entirely different interpretation of Breyer's status quo argument: since there has not been a SCOTUS pro-transgender ruling, there should not be any pro-trans rulings.