The ACR Project filed an amicus brief with the Court of Appeals for the Ninth Circuit, supporting Idaho in a case that can only deepen the circuit split on the legality of schools maintaining separate-sex bathrooms, locker rooms, and showers for their students. You can see the full brief, below.
Currently, the U.S. Courts of Appeals are split on what, if anything, the Equal Protection Clause (for public schools) and Title IX (for all federal funding recipients) have to say about schools’ maintenance of separate bathrooms, locker rooms, and showers for the two biological sexes. The Fourth and Seventh Circuits have maintained that these provisions forbid such policies. The Eleventh Circuit has disagreed. While a petition for certiorari is pending at the Supreme Court concerning that circuit split, and as a related case awaits ruling at the Sixth Circuit, the Idaho plaintiffs appealed to the Ninth Circuit a District Court’s ruling upholding a state law dictating that k-12 public schools requiring the maintenance of such separate-sex facilities.
Our brief addresses why an interpretation of Title IX to forbid that state policy must be remarkably misguided, misreading the Supreme Court’s Bostock opinion to deny school systems the flexibility to handle the situations their transgender students face as specific circumstances require and imposing a one-size-fits-all approach untethered to any enactment with democratic legitimacy.