Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 30


2017—In Whitaker v. Kenosha Unified School District, a Seventh Circuit panel affirms the grant of a preliminary injunction that requires a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But the panel somehow completely misses the larger point that it is the transgender ideology that is built on sex stereotypes.

As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently not sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom.


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