Last month, in a little-reported case, a federal court upheld Tennessee’s law banning transgender public school students from opposite sex bathrooms.
The court’s decision comes as the U.S. Supreme Court is about to consider a similar case over Tennessee’s transgender care ban. As the amicus briefs from dozens of civil rights and other interest groups pour in, all eyes are on what promises to be a battle royale over transgender rights this term.
But while the school bathroom law controversy got less attention, this new Tennessee case may hint at how the high court could decide to uphold Tennessee’s ban on gender-affirming care for minors later this year.
The federal district court’s ruling reflects a controlling consensus in the circuit that laws related to gender identity don’t discriminate based on sex when they treat both biological sexes equally.
Under Tennessee’s “Accommodations for All Children Act,” transgender students can ask the school to make a “reasonable accommodation” when they desire more privacy in the bathroom or locker room. However, a “reasonable accommodation” explicitly excludes access to facilities designated for the opposite biological sex.
Parents can take them to court if the school allows boys to be in the girls’ facilities. Under the Act, parents of a student who encounters a member of the opposite sex in the bathroom can sue the school for damages and attorneys’ fees.
The lawsuit against the school was brought by the parents of a nine-year-old transgender girl (i.e., a boy) because her elementary school wouldn’t allow her into the girls’ bathroom. Instead, to avoid potential liability created by the Act, the school required her to use its single-occupancy restroom.
But that made her feel singled out. She claimed it “isolated her” and “exacerbated the stress and anxiety she experienced while trying to fit in and avoid being stigmatized on the basis of her sex”—all in violation of her rights under the Equal Protection Clause of the Fourteenth Amendment.
When he first considered the case, Judge William Campbell allowed the student’s Equal Protection claim to go forward. But last month, he reconsidered and vacated his 2023 ruling, based on two cases decided by the Sixth Circuit in the interim.
Just a day after the court’s first decision, the federal Court of Appeals held that Tennessee’s ban on gender-affirming care for minors didn’t discriminate based on sex, noting that “neither the Supreme Court nor this Court has recognized transgender status as a suspect class.” That question will likely be resolved this term when the Supreme Court decides whether the transgender care ban denies children equal protection of the law under the Fourteenth Amendment.
And, more recently, in another case we covered here, the Sixth Circuit upheld Tennessee’s policy preventing someone from changing a birth certificate to match their gender identity. The state has broad discretion as to how to keep its vital records, the court said, and there is no “deeply rooted right” to a birth certificate matching one’s gender identity.
Judge Campbell said Tennessee’s school bathroom law is analogous to the laws challenged in these two intervening cases:
Here, Plaintiff is not challenging Defendants’ policy of designating separate facilities based on biological sex. Instead, all parties appear to agree that Plaintiff is challenging her inability to use the restroom corresponding with her gender identity. In other words, although Plaintiff identifies as a girl, the Act prohibits her from using the facilities that correspond to her gender identity, while students who identify with their biological sex at birth are permitted to use such facilities. However, the Act and policy do not prefer one sex over the other, bestow benefits or burdens based on sex, or apply one rule for males and another for females.
Under the new controlling law in the circuit, the court applied “rational basis review” rather than heightened “strict scrutiny” to the school bathroom law—a law that treats both biological sexes equally. The court found that the governmental interests in privacy and safety were sufficient to pass a rational basis review.
Like the school bathroom law, Tennessee’s gender-affirming care ban serves a government interest that should be reason enough to uphold it: it protects children from mutilating, irreversible, sterilizing sex transition treatments—treatments they could regret for the rest of their lives.
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