The Seventh Circuit recently addressed discrimination issues involving a transgender student in a case of first impression, Whitaker v. Kenosha (2017), holding that a transgender student was protected by Title IX’s prohibition against sex-based discrimination. The court theorized that because transgender people do not conform to traditional stereotypes associated with their birth sex, transgender discrimination is nothing more than sex stereotyping, long prohibited by protections against sex discrimination. In essence, the court held that prohibiting a trans boy from using the boys’ restroom was sex stereotyping, because if he was born a boy, he would have been allowed to use the boy’s room. The decision is a victory for transgender rights advocates, but does not recognize gender identity as a protected class under the Equal Protection Clause.

The court could have instead found that gender identity, like sex, is a protected class deserving of heightened scrutiny. There is no evidence that the 1972 Congress intended to protect gender identity when it passed a prohibition against sex-based discrimination, and municipalities across the country have debated adding gender identity to their anti-discrimination policies. Few non-lawyers would say that transgender people have been protected by statute since 1972. To borrow reasoning from Judge Diane Sykes’s dissent in Hively v. Ivy Tech Community College of Indiana (7th Cir. 2017), the court could have found that a school that refuses to allow a transgender man from using the men’s room is not discriminating against him because of his birth sex, but because his gender identity does not match his birth sex. Thus, the argument continues, the discrimination is based on gender identity, and the discriminatory motivation is independent of and unrelated to the student’s sex.

“Legislating from the bench” to achieve a desired outcome is a controversial subject, and courts can avoid debates over it by achieving the same result in a more straightforward manner. In the Whitaker case, the court could have concluded that the Equal Protection Clause protects against discrimination based upon gender identity. In Windsor v. United States (2012), the Second Circuit succinctly laid out the Supreme Court’s test for quasi-suspect classes worthy of heightened scrutiny: to be classified as a quasi-suspect class, 1) the group must have suffered a history of persecution, 2) its defining trait has no relation to members’ ability to contribute to society, 3) it must be a discernible group with distinguishing characteristics, and 4) it must be politically weakened. Trans people have reported high rates of discrimination in education, employment, housing, and healthcare. There is no data showing transgender people are less productive than other members of society, by virtue of their transgender status. They are easily discernible based upon the mismatch between their birth sex and their gender identity. Finally, they lack the political strength to protect themselves, as evidenced by the recent military ban, as well as their complete lack of representation in Congress and the federal judiciary.

Before his retirement, Judge Richard Posner argued in his concurrence in Hively that the judiciary has a duty to “update” old laws and constitutional provisions so that they can reflect the needs of modern society. But the Whitaker court need not have entered such controversial territory to protect transgender rights, when it could have instead found that trans people have been historically denied equal protection of the laws.