Last month a federal judge in Pennsylvania granted a preliminary injunction to a trio of three transgender students who sued to stop the Pine-Richland school district from enforcing a new policy that would have banned them from the bathrooms at the high school that correspond to their respective gender identities. The decision is notable because in its analysis of the plaintiffs' likely success on the merits (the judge's foremost question when deciding to issue a preliminary injunction) the court determined that the school district's policy violated their right to Equal Protection under the Constitution. The court determined that the plaintiffs' claim warranted intermediate scrutiny because transgender people fit the criteria by which courts have extended intermediate scrutiny to other groups -- such as having historically been vulnerable to discrimination, being identifiable by immutable characteristics, and constituting a minority lacking political power. This aspect of the court's reasoning is groundbreaking. Other courts have applied intermediate scrutiny in transgender discrimination cases, but only to the extent that such discrimination overlaps with sex discrimination. Here, the court predicts that discrimination based on one's transgender status itself warrants intermediate scrutiny.
If this reasoning takes hold, public schools and employers (as the Constitution only applied to government action) will have a much more difficult time enforcing bathroom bans. This is because the consequence of intermediate scrutiny is that the defendant, here the school district, must demonstrate persuasive (as opposed to merely rational) reasons for treating transgender students differently from others. The school district could not satisfy this requirement by speculating that permitting gender-consonant bathroom use by transgender students would lead to non-transgender students causing disruption in bathrooms designated for the opposite sex, which is what the school board claimed to fear. The fact that the three students in this case used the bathrooms that corresponded to their gender identities prior to the ban's enactment without causing any such problems negated the argument that such a justification was persuasive. Nor was the school board's privacy rationale persuasive, since the presence of bathroom stalls already ensured the privacy of all users. Along these lines, the court also rejected the school district's argument that a non-transgender bathroom user might decide to change clothes inside the bathroom but outside of a stall, risking an invasion of privacy should they encounter a transgender person, since the school could not produce any evidence that students used the bathroom for such a purpose. It thus concluded that when reaching the merits of the case the court would likely find in favor of the plaintiffs, thus warranting a preliminary injunction against the school district's policy while litigation is pending.
However, the court did not determine that the plaintiffs would likely succeed on their simultaneous Title IX claim. Unlike the Equal Protection Clause, which is flexible in the discrimination that it covers, Title IX only prohibits discrimination because of sex. Though some courts have found that Title IX covers a transgender student's right to use the bathroom that matches their gender identity, these decisions deferred to the now-withdrawn interpretation of the previous administration's Department of Education. The court determined there was too much uncertainty in this matter to satisfy the requirement of "likely" success on the merits. This part of the decision did not affect the ruling's bottom line, however, since the court already determined that the plaintiffs were likely to succeed on Equal Protection grounds.