WDI USA has filed an amicus curiae (friend-of-the-court) brief in a case called D.P. v. Mukwonago Area School District, et al. before the Seventh Circuit Court of Appeals.
In this case, a minor boy is demanding to be able to use the girls’ facilities at his school and at various school-sponsored events. The District has a policy requiring students to “use restroom and locker room facilities on District property and at District-sponsored events according to each student’s sex assigned at birth,” except under certain circumstances. We note in our brief:
The District requires students to use bathrooms that align with their sex, except under certain circumstances. In its policy, the District uses the phrase “sex assigned at birth.” Amicus disagrees with the use of that language because sex is not “assigned at birth,” but rather observed and recorded, with 99.08 percent accuracy. In addition, amicus does not agree that any student should be able to access an opposite-sex bathroom or locker room under any circumstance. Nonetheless, amicus understands that the District is doing its best to accommodate all of its students and commends the District for taking its strong stand.
The Seventh Circuit has two precedents that require school districts to accommodate students with opposite sex “gender identities” in school facilities. Those cases are generally called Whitaker and Martinsville. The Whitaker case arose before WDI USA existed, but in 2023, WDI USA signed on to an amicus brief in Martinsville with three other women’s groups, urging the Supreme Court to take it up. It declined to do so.
On June 12, the three-judge panel hearing the current case decided that because of Whitaker and Martinsville, it had to rule against the school district. However, it noted that it might change its mind, depending on the outcome of the Supreme Court’s decision in U.S. v. Skrmetti. That case came down six days later, on June 18, ruling that a state law prohibiting the administration of puberty blockers and opposite-sex hormones does not violate the Equal Protection Clause of the 14th Amendment, which is at issue in the current case as well. So, on June 30, the Seventh Circuit vacated its June 12 decision and ordered the parties to file supplemental briefing on whether it should overrule Whitaker and Martinsville. One main issue here is whether “transgender status” constitutes a “quasi-suspect classification” for purposes of the Constitution’s Equal Protection Clause. WDI USA, of course, thinks that it does not and must not.
WDI USA worked quickly because we absolutely think the Seventh Circuit should overrule Whitaker and Martinsville and rule that a school district policy maintaining single-sex facilities should be constitutional. We contacted the school district’s lawyer, who was enthusiastic about our participation. We quickly wrote a strong brief, which argues that the school district’s policy in this case is consistent with both Title IX and the Equal Protection Clause.
The concluding section of the brief:
It is frequently said that policies allowing students (or anyone) to access spaces designated for the opposite sex based on “gender identity” are “inclusive” or “compassionate.” Amicus disagrees. Policies that allow men and boys access to spaces designated for women and girls in effect exclude and are decidedly not compassionate to women and girls as a sex class.
Amicus also thinks it is a cruel lie to tell people (especially children) that they are the sex opposite to what they are. Sex is material and cannot be changed. The most compassionate thing anyone can do for people who genuinely believe that they are the opposite sex is encourage them to accept themselves as they are.
Amicus therefore urges the court to: (1) rule that the District’s policy comports with both Title IX and the Equal Protection Clause; (2) overrule both Whitaker and Martinsville; and (3) state explicitly that “transgender status” is not a quasi-suspect class for purposes of equal protection.
WDI USA has now filed briefs in the 4th, 5th, 6th, 7th, 9th, and 10th Circuits (roughly half of them), and before the U.S. Supreme Court.
Read or download the full amicus brief below:
