Bench Memos

Law & the Courts

Sixth Circuit’s Identity Disorder

In yet another episode of judicial-identity disorder, a divided Sixth Circuit panel last week refused to stay pending appeal a district court’s preliminary injunction that orders a school district in Ohio to allow an 11-year-old boy who identifies as female to use the girls’ restroom. As Judge Jeffrey Sutton pointed out in dissent, “the Supreme Court recently faced the same issue and granted the same request” in G.G. v. Gloucester County School Board (and it has since granted the certiorari petition in that case), so the panel majority’s refusal to stay the district-court’s order “decline[s] to respect the Supreme Court’s lead.”

I’ve already discussed how the district court’s Title IX analysis was thoroughly confused. The panel majority’s cursory treatment manages to be even sloppier. The panel majority adopts the astounding position that the school district does not even raise “serious questions going to the merits.” But its position rests on its own simple confusion.

The panel majority posits that the “settled law” of the Sixth Circuit provides that “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” But that proposition doesn’t help it. The panel majority fails to recognize the elementary reality that a policy that requires a boy who identifies as female use the boys’ restroom does not involve sex stereotyping at all. On the contrary, that policy treats boys as boys, irrespective whether they engage in gender-conforming behavior. Likewise, that policy does not discriminate on the basis of gender identity: boys can’t use the girls’ restroom, whether or not they identify as female. 

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