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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Privately nondelegating horse puns.

1. In 2020, the U.S. Postal Service made a number of changes that reduced service. New York, New Jersey, and Hawaii sue, alleging that the changes will impede voting by mail. The district court enjoins the changes. D.C. Circuit: No jurisdiction. Congress said you have to take these challenges to the Postal Regulatory Commission first.
2. Rhode Island, like many states, limits a motor vehicle manufacturer’s ability to establish a new dealership near one of its existing in-state dealerships. Unlike other states, Rhode Island law extends this limit to new dealerships established in neighboring states. First Circuit: That sort of extraterritorial regulation violates the Dormant Commerce Clause.
3. Agents in Puerto Rico seize a man’s phone via a search warrant for an iPhone 6s. There is bad stuff on the phone. Oof! Turns out the phone they searched is an iPhone 13. Agents: Good-faith exception applies. It was an iPhone linked to the same phone number. First Circuit: The 6s and 13 aren’t even the same size, and the agents realized they had the wrong phone at the time. Motion to suppress affirmed.
4. A few years back IJ won a case at SCOTUS, forcing Maine to offer private school tuition without discriminating against religious education. Now in a non-IJ case, the First Circuit has confronted a follow-up question: What strings can the state place on that aid that might come into conflict with a religious school’s mission? Over the course of well over 100 pages, in two opinions, the court largely upholds the denial of the schools’ motions for preliminary injunctions, although one school succeeds in obtaining a PI regarding one religious liberty claim. Bonus: Pullman abstention goes down in flames repeatedly.
5. Jamaican man fighting deportation asks for bail so he can receive kidney dialysis. Second Circuit: Without getting to the merits of his pending habeas appeal, he should be temporarily released for treatment. Dissent: He can get treatment in Jamaica via a self deport.
6. New York City charges a toll for vehicles entering the Central Business District in Midtown and Lower Manhattan. Neighboring New York counties sue, alleging the toll unconstitutionally restricts the right to travel and violates the Due Process, Equal Protection, and Excessive Fines Clauses of the New York and U.S. Constitutions. Second Circuit: It does none of those things.
7. New York City ordinance forbids real-estate brokers from collecting fees from tenants based on apartments they list—which, the Second Circuit says, absolutely restricts their commercial speech and impairs the obligations of their contracts but does so in a manner that is, constitutionally speaking, okey-dokey.
8. Families of children with ADHD and autism spectrum disorder sue drug manufacturers, arguing that the manufacturers failed to warn them that prenatal ingestion of acetaminophen could cause both disorders. The district court excludes all of the plaintiffs’ expert witnesses and grants summary judgment for defendants. Second Circuit: Reversed for some of the experts (including the Dean of Harvard’s School of Public Health). Maybe their conclusions are wrong or a jury won’t be convinced, but their testimony meets the standards for admissibility.
9. If you want to play Woke Cancellation Bingo, this Third Circuit story about a doctor who published a detailed article critiquing medical school affirmative action policies (in 2020, to an unpleased reaction by his colleagues) would be a great resource. But the last cancellation may belong to the doctor, as (over a dissent) his defamation claims against university, hospital, and others are now back in play.
10. Immigrant tries to timely e-file motion with immigration judge to reopen his removal proceedings. Electronic-filing system doesn’t accept it. Then he tries to timely file a hard copy in person. Clerk refuses to accept it. Then he sends it by mail—but after the deadline. Court accepts it. Huzzah! … And then denies the motion as untimely. Fourth Circuit: Come on guys. “Filing a motion should not be a game of gotcha.” (The court also gives a well-deserved shout-out to the Georgetown Law students who represented the immigrant on appeal.)
11. Allegation: Salem, S.C. post office employee goes berserk, violently attacking a woman collecting her mail—an attack enabled by the postmaster, who opened double-locked doors to aid the employee’s advance. Fourth Circuit: She can pursue a narrow claim against the postmaster but nothing else. The combo of the FTCA, Westfall Act, and Bivens “sends a plaintiff … directly from the arms of Scylla to the mouth of Charybdis. The result is quite harsh and rather shocking”; take it up with Congress.
12. Prominent Maryland lawyer is charged with shambolic attempt to extort a hospital, insists on representing himself at trial. More shambles ensue, with the prominent lawyer yelling at the judge and getting jailed overnight for contempt. Fourth Circuit: And despite the prominent lawyer’s buyer’s remorse, the district court did not plainly err in letting him act as his own lawyer.
13. New Orleans police officer enters yard, shoots, kills 16-week-old puppy who was running toward him without growling, barking, etc. Jury: Shouldn’t have done that but qualified immunity. Also, the city’s policies were not to blame, but the city is liable to the bereaved owners. Fifth Circuit: New trial on municipal liability.
14. Elementary school dropoff-line dispute prompts Onalaska, Tex. traffic cop to (allegedly) jump on SUV’s running board and try to drag mom out by her hair (with kids in the back and vehicle in drive). Fifth Circuit (per curiam, unpublished): It was reasonable to interpret mom tensing up her body as resisting arrest. (But no biggie b/c the officer had probable cause to arrest for other stuff.) No constitutional violation.
15. In which attorneys representing the United States attempt to persuade the Eighth Circuit that their previous settlement agreement with the plaintiff couldn’t possibly forbid them from rescinding his permit because he offered to pay them money to leave him alone after they threatened to rescind his permit.
16. Last year, the Treasury Dept. ordered money service businesses in 30 zip codes along the southwest border to report all cash transactions over $200. For one MSB, the paperwork alone takes 14-17 hours a day, not counting the time it takes to gather customers’ personal info, and business drops by half when customers shy away from giving their info. Ninth Circuit (over a dissent): Looks like, among other missteps, the feds acted without statutory authority. No presumption of regularity and PI affirmed. (This is an IJ case. Boom!)
17. Ninth Circuit (unpublished, over a dissent): Hitting a suspect in the face with a baton is excessive, indeed deadly, force, and a reasonable jury could find it was unreasonable in this case where the suspect had his hands raised and was obeying officer commands. Anyhow, qualified immunity.
18. Two people allege that they were sexually abused by Pushmataha County, Okla. jailers. Tenth Circuit (2025): Though the Ninth Circuit presumes non-consent between guards and inmates, we don’t. Nevertheless, there are enough disputed facts to send this to a jury rather than grant qualified immunity. Tenth Circuit (2026): Though the sheriff’s willful disregard for criminal sexual conduct inside the jail is inexcusable, there is no municipal liability. Concurrence: We need to overturn our precedent and presume non-consent (in a case where the argument is advanced).
19. Fourteen-year-old kicked out of Florida State Fair for unruliness is dropped off at side exit by Hillsborough County deputies, who do not (as required) alert responsible adult. A deputy threatens them with arrest if they re-enter and tells them the only way to get to the main exit where their ride is supposed to pick them up is to cross an interstate. They try, and the teen is killed. Jury: Wrongful death but no 4A violation. Eleventh Circuit: Affirmed, as is the denial of sovereign immunity.
20. And in en banc news, the Fifth Circuit will reconsider its decision that due process requires bond hearings within 90 days for certain aliens pending their removal hearing. (For those of you following closely, there’s a circuit split in this statutory and constitutional soup as to whether mandatory detention sans a bond hearing is okay.)
21. And in more en banc news, the Ninth Circuit (over eight votes and two dissentals) will not reconsider its decision that California’s ban on concealed carrying of switchblade knives (in public) is consistent with history and tradition.

New case! In 2021, IJ client Gino Fiermonte, an electrician at Long Island MacArthur Airport, was severely shocked while repairing a runway sign because, according to Gino, an FAA employee negligently turned the power back on. So Gino filed suit against the FAA employee in state court. But then the feds removed the case to federal court and certified the employee was acting within the scope of her federal duties. So then the proper thing to do is to substitute the United States in as defendant and proceed under the Federal Tort Claims Act, yes? Yes! Right! But instead, the feds are trying to get Gino’s case tossed out. They claim that Gino should have known to file his lawsuit against the U.S. in federal court to begin with—even though the feds (by controlling the scope-of-employment certification) control whether the case ultimately belongs in state or federal court. That can’t be right, and, if it succeeds, the gov’t will have concocted yet another gigantic, atextual hurdle to getting straightforward claims heard on the merits. Click here to learn more.

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A footnote from today’s D.C. Circuit opinion by Judge Justin Walker in U.S. v. Littlejohn; the underlying issue was whether a district court judge acted improperly in asking a question of a government lawyer that may have been aimed at helping the government’s case:

[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an “opportunity to make it clear to the public” why Littlejohn didn’t face more charges.

[Footnote:] Littlejohn complains that at sentencing the district court said it was asking these questions “to help” the Government. But it’s likely the court was only trying “to help” the Government inform the public about the reasons for the lenient charging decision in this high-profile case. In any event, judges are not required to ask only hostile questions at a sentencing hearing—or at an appellate argument, for that matter. See Oral Arg. Tr. at 7, Ransom v. FIA Card Services, N.A., 562 U.S. 61 (2011) (No. 09-907) (Justice Scalia: “I’m trying to help you.”); Oral Arg. Tr. at 13, United States v. Tinklenberg, 563 U.S. 647 (2011) (No. 09-1498) (Justice Scalia: “I’m trying to help you.”); Oral Arg. Tr. at 21, United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023) (Nos. 21-1326 & 22-111) (Justice Sotomayor: “I’ve never heard an attorney fighting people trying to help him.”; Justice Gorsuch: “It happens all the time here.”); Oral Arg. Tr. at 10, Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025) (No. 23-975) (Justice Sotomayor: “I was trying to help you.”); Oral Arg. Tr. at 34, Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012) (No. 10-1016) (Justice Sotomayor: “I thought Justice Alito was trying to help you.”; Justice Breyer: “He was.”); Oral Arg. Tr. at 41, Martel v. Clair, 565 U.S. 648 (2012) (No. 10-1265) (Chief Justice Roberts: “No. I’m trying to help you.”); Oral Arg. Tr. at 38, White v. Woodall, 572 U.S. 415 (2014) (No. 12-794) (Justice Scalia regarding Justice Breyer: “He’s trying to help you, counsel.”).

For more on the underlying case, see D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump’s and Others’ Tax Returns. Thanks to Andy Patterson for the pointer.

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An American biotech company that specializes in stem cell therapy has been waiting for nearly three years for the Food and Drug Administration to process an application to sell products overseas.

Now, it is asking a federal court to get involved—and giving the Trump administration a chance to fix a mess made by its predecessor.

Regenative Labs sued the FDA in federal district court on Thursday, alleging that the agency has “unlawfully withheld” a license the FDA awards to signal to foreign governments that products meet U.S. regulatory standards—a crucial step in being able to sell American-made medical tech in other countries.

There is no question that Florida-based Regenative Labs’ products meet U.S. standards, as the company has been lawfully operating in the American market and registered with the FDA since 2020. Regenative Labs harvests stem cells from donated umbilical cords to make jellies that the company markets as treatment for injured tendons and other connective tissues.

The company would like to expand its market overseas and boost its American workforce. It likely would have already done so, if not for being trapped in a bizarre regulatory limbo by the FDA.

Regenative Labs has tried multiple times to get a Certificate to Foreign Governments (CFG), but the FDA has refused to even look at those applications, the complaint alleges. Under federal law, the FDA is supposed to review those applications within 20 days—but more than 10 months have now elapsed since the company’s last application.

In response to that application, the FDA pointed to issues raised in a letter it sent to Regenative Labs in 2023. In that letter, the FDA said Regenative’s products might need to be regulated as drugs, rather than as human cell and tissue products—a category of health products known as “HCT/Ps.”

Around the same time, the FDA sent letters to several stem cell therapy companies making the same claim: That their products might have to be regulated as drugs, rather than as HCT/Ps. If the FDA made that decision official, it would trigger additional testing and approvals.

In the years since then, the FDA hasn’t acted to change its policy toward stem cell therapy—but it has used the possibility of that change to hold up Regenative Lab’s application for a CFG.

In the complaint filed Thursday, Regenative says the FDA’s refusal to act on the CFG applications has caused material harm—as the company has fallen behind in the global marketplace for stem cell treatments—and has left Regenative in a state of regulatory purgatory, with no clear path forward toward resolving the situation.

The FDA’s handling of the matter has been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the complaint argues. 

At its core, the question raised by the new lawsuit is a bit simpler than it might at first seem: Can the FDA arbitrarily refuse to let an American company operate overseas because it might someday change how it regulates that company’s products?

The other underlying question—about whether Regenative Lab’s products are drugs or HCT/Ps—remains unsettled. Last year, the Supreme Court declined to review a case in which the FDA determined that products made from stem cells were drugs.

While Regenative Labs is obviously hoping for a legal result, the new lawsuit might be best understood as an attempt to push this issue in front of the Trump administration, which now has an opportunity to fix a mess created during the Biden administration. It also presents the Trump FDA with a chance to provide some much-needed regulatory certainty to an American small business that’s trying to expand.

Regardless of what happens from here, it’s obvious that the FDA’s handling of Regenative Labs’ application has been unacceptable. American businesses shouldn’t face endless waits while regulators try to decide what rules they might apply tomorrow.

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From Judge Hala Jarbou (W.D. Mich.) yesterday in Daghra v. Hinkley:

Petitioner, a United States Immigration and Customs Enforcement detainee, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. An immigration judge had granted Petitioner a bond of $35,000, but the bond order was stayed pending appeal to the Board of Immigration Appeals pursuant to 8 C.F.R. § 1003.19(i) (2025). Petitioner argued that the 90-day automatic stay provision in § 1003.19(i) violates the Fifth Amendment’s Due Process Clause, and sought an order requiring the Government to allow him to post bond. While this lawsuit was pending, the automatic stay of Petitioner’s bond order expired. The Government now represents that the bond order is back in effect and Petitioner will be released if he posts the $35,000 bond. Accordingly, the Court finds that the habeas petition is moot and dismisses it without prejudice.

There is one additional issue in this case that the Court must address. In the Government’s response to the Court’s initial order to show cause, it stated the following:

More recently, the Sixth Circuit has reiterated that § 1226(e) bars challenges that “ask the court to reweigh the evidence underlying a bond decision or second-guess the Immigration Judge’s discretionary judgment.” See Taylor v. Hott, 724 F. App’x 387, 392 (6th Cir. 2018) (district court lacked jurisdiction to review IJ’s bond denial where petitioner challenged flight-risk determination) ….

The cited case, Taylor v. Hott, is not located at the identified page of the Federal Appendix. Indeed, page 387 is contained within a different opinion—Atkins v. CGI Techs. & Sols., Inc., 724 F. App’x 383 (6th Cir. 2018)—which is about commercial arbitration, not immigration bond determinations. In its research, the Court was unable to identify a Sixth Circuit case with the caption Taylor v. Hott, or any federal case containing the quoted language. Thus, it seems this citation was likely produced by generative artificial intelligence (“AI”).

“It is no secret that generative AI programs are known to ‘hallucinate’ nonexistent cases, and with the advent of AI, courts have seen a rash of cases in which both counsel and pro se litigants have cited such fake, hallucinated cases in their briefs.” “Without question, it is improper and unacceptable for litigants … to submit non-existent judicial opinions with fake quotes and citations.” It should be obvious that any attorney who uses AI must scrupulously review its work product to ensure that the cited cases exist and that the citations accurately and fairly represent the underlying case law. The duty of candor towards this tribunal demands no less.

Although the Court will not presently impose sanctions for this conduct, it goes without saying that the Government must ensure its future filings with this Court do not include non-existent case law.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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The Boston Globe just published my article [gift link here] on Trump’s election fraud speech from last night. Here is an excerpt:

In a speech Thursday night, President Trump claimed there have been serious breaches of election security and repeated his assertions that the 2020 election was compromised. As in the past, these remarks are utterly indefensible. And they are likely part of an illegal effort to federalize control over the upcoming midterm elections, so as to tilt the results in his party’s favor. Hopefully, America’s courts and federal system will continue to stymie him.

Trump claimed in his speech that some 278,000 non-citizens illegally registered to vote . There is no real evidence to support this, and even he didn’t claim proof there was any significant actual illegal non-citizen voting. Decades of efforts to find such evidence — including by the right-wing Heritage Foundation — have turned up no more than a few dozen cases, over a span of several decades…

These claims are intended to bolster Trump’s long-standing assertions that the 2020 election was somehow “stolen” from him. Overwhelming evidence shows the contrary. In 2020-21, Trump and his political allies filed 64 court cases challenging the results in six key swing states. As detailed in “Lost, Not Stolen,” a review of these cases conducted by prominent Republican lawyers, election law specialists, and former federal judges, none of these decisions found significant evidence of voter fraud…

If some combination of Democrats and foreign powers had managed to “steal” the 2020 election while Trump was in the White House, and avoid detection in the process, one wonders why they didn’t do it again in 2024, when a Democratic president was in power and in control of the Justice Department and the intelligence community. The fact that no such thing happened then is yet further evidence that it didn’t happen in 2020.

The real purpose of Trump’s ongoing lies about the 2020 election and election security may be to bolster his efforts to “nationalize” control of the 2026 midterm elections, so that he can skew results in his party’s favor…

Fortunately, Article 1, Section 4 of the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. No current federal law gives Trump the authority he seeks. Numerous federal courts — including in cases presided over by Republican-appointed judges — have rejected his attempts to change voter ID rules by executive order and take control of state voter rolls. Courts should similarly rule against any potential efforts to use federal law enforcement agencies or — worse still — troops, to seize control of polling sites and ballots…

America’s decentralized system of election administration has downsides, as well as virtues. But, as leading election law scholar Richard L. Hasen notes, it provides valuable protection against “a president hell-bent, like Trump, on election subversion.” Hasen, previously an advocate of election law centralization, adds that this has led him to reconsider.…

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From yesterday’s decision in N.Y. Times Co. v. U.S. Dep’t of Defense, by Judges Karen LeCraft Henderson and Patricia Millett, which stayed a lower court order that had blocked the policy:

[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a “sufficiently adverse action to give rise to an actionable First Amendment claim” of retaliation. [Plaintiffs-Appellees] have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy’s effect on all other covered reporters.

In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees’ claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay.

The court also set the case for expedited oral argument. Judge Bradley Garcia dissented:

In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon. The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction. Within days, the Department announced a new policy that, among other things, required credentialed reporters to be escorted at all times while on Pentagon grounds. The Times and Barnes moved to compel compliance, arguing that the escort requirement ran afoul of the district court’s order. The district court granted that motion. This court—based on my vote and Judge Walker’s—granted the government’s request for a limited stay pending appeal because the district court’s original injunction “did not address” the later-imposed escort requirement and “the district court did not hold that the escort requirement independently violates” the Constitution.

The district court has now assessed the lawfulness of the escort requirement. The Times and Barnes filed a separate lawsuit directly challenging the new policy. The district court preliminarily enjoined the policy’s escort requirement after determining that “it was issued to retaliate against the plaintiffs for exercising their constitutional rights.”

The district court found all three elements of a First Amendment retaliation claim satisfied: (1) The plaintiffs engaged in “activity protected under the First Amendment,” (2) the escort requirement is an “adverse action that would deter persons of ordinary firmness from exercising their First Amendment rights,” and (3) there was a causal link between the plaintiffs’ protected activity and the imposition of the escort requirement….

[R]elying on declarations from affected reporters, former Department officials, and other record materials, the district court concluded that the escort requirement “inescapably burdened” the plaintiffs’ journalistic work. Specifically, it dramatically reduced their practical ability to access the premises and rendered informal and spontaneous interactions with government sources difficult if not impossible. As the district court observed, the requirement thus “made it exceedingly challenging to … cover the Department and the U.S. military from Pentagon grounds.”

And for the causal link, the district court found “evidence of retaliatory motive” in “myriad statements by Department officials expressing disdain for reporting by The Times and other ‘legacy’ media outlets” starting “shortly after the confirmation of Secretary Hegseth and continuing through the present.” Those “hostile” statements, coupled with the Pentagon’s shifting and “facially dubious” rationales for imposing the escort requirement, demonstrated that the requirement would not have been adopted but for the plaintiffs’ protected First Amendment activities….

The majority’s decision to grant the stay apparently rests on the proposition that a policy like the escort requirement cannot constitute an adverse action if it is “generally applicable” on paper and in practice. But the majority cites no binding precedent for that proposition, and none exists. We have never held that a government policy cannot constitute unconstitutional retaliation simply because it is evenhanded. And such a holding would likely be incorrect. We have emphasized that the adverse-action inquiry poses a relatively low bar. This element is meant to screen out claims based on government actions so minor they would not “inhibit an ordinary person from speaking.”

If threatening to impose a requirement like the escort requirement on one journalist would (as the district court found) sufficiently chill his speech, it makes little sense to suggest that effect evaporates if the government threatens to impose the same requirement on all reporters. Indeed, the chilling effect on a speaker with any regard for his peers may be amplified. Perhaps a policy that places a speaker at a unique disadvantage would be even more chilling in certain circumstances. But a retaliatory government policy should not be immunized simply because it is broadly and evenly applied.

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From F.F. v. Valley View Comm. Unit School Dist. 365U, decided Monday by Judge Sharon Johnson Coleman (N.D. Ill.):

Plaintiff is an 18-year-old female who was previously enrolled at Bolingbrook High School. On November 4, 2024, at around 10:00 a.m., Plaintiff entered a girls’ multi-use restroom labeled “girls’ bathroom.” After using and exiting a stall, Plaintiff observed a transgender student, who she was familiar with, dressed in “male-typical clothing … with no visible indication of female identity,” standing in close proximity to her stall. Plaintiff feared that the student could have seen her undergarments or her exposed body through small spaces on either side or under the stall door. While Plaintiff does not allege any facts indicating the student actually saw or tried to see her exposed body, Plaintiff claims to have been “triggered” and to have experienced “intense feelings of anxiety, discomfort, and shame” from the mere possibility of being exposed.

On November 6, 2024, Plaintiff described the incident to her father, Mr. Fisher. The following day, Mr. Fisher sent a text message to the School’s principal, Dr. Pascavage, to report the incident and raise concerns about Plaintiff’s privacy. Dr. Pascavage responded that the transgender female student had been granted access to the girls’ restroom pursuant to an Individual Development Plan, or formal plan outlining the student’s gender-identity accommodations. To address Plaintiff’s privacy concerns, Dr. Pascavage offered Plaintiff access to single-use staff restrooms.

During an in-person meeting with Mr. Fisher on November 12, 2024, Dr. Pascavage further elaborated that the School followed Illinois Department of Human Rights (“IDHR”) guidance, titled “Guidance on Protection of Students in Illinois: A Non-Regulatory Guidance Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students.” The 2021 IDHR publication provides guidelines on complying with the Illinois Human Rights Act, “in the context of a school setting, with specific focus on how the IHRA protects the rights of transgender, nonbinary, and gender nonconforming individuals.” In relevant part, the publication states:

Use of restrooms, locker rooms and changing rooms may not be restricted based upon a student’s physical anatomy or chromosomal sex. A student must be permitted to access restrooms or bathrooms, locker rooms and changing rooms that align with their gender-related identity and without having to provide documentation or other proof of gender.

Under the Act, the discomfort or privacy concerns of other students, teachers, or parents are not valid reasons to deny or limit the full and equal use of facilities based on a student’s gender-related identity. Instead, any student, teacher or other individual seeking more privacy should be accommodated by providing that individual a more private option upon their request, if possible. The prejudices of others are part of what the [Act] was meant to prevent. [T]here is no right that insulates a student from coming in contact with others who are different.

During continued communication with Dr. Pascavage throughout November 2024, Mr. Fisher expressed frustration with the School’s policy and complained that the School’s offer to allow Plaintiff’s use of an alternative facility would not sufficiently address the issue.

On December 9, 2024, at a public meeting of the School District’s Board of Education, Mr. Fisher raised the issue of transgender students having access to the girls’ restrooms, drawing attention to gaps on the sides and below stall doors that render the interior of the stall partially visible from outside. In response to Mr. Fisher’s concerns about the stall design, between December 20, 2024, and January 6, 2025, the School installed rubber strips and other opaque material on the toilet stalls in the girls’ restrooms.

In January 2025, Plaintiff attempted to use the staff restroom in the School’s library. Plaintiff alleges, however, that she was denied access to the staff restroom by the librarian. Discouraged, Plaintiff took deliberate care to use other girls’ restrooms in the School as far away as possible from the one where the initial “incident” occurred. Further, Plaintiff used these girls’ restrooms only during class hours, which she alleges, led to her losing classroom instruction time, disrupted her routine, heightened her unease, and diminished her sense of safety at the School. She further claims that this fear caused her to skip restroom visits, which Plaintiff states was “especially unsettling” during the days she had her period.

Plaintiff does not allege, however, any facts indicating that the transgender girl in question made any efforts to view her through the stall or otherwise invade her privacy. Plaintiff also does not allege that she confirmed or investigated the gender identity of any other girls she encountered in the restroom outside of the transgender girl from the initial “incident.” …

The court rejected plaintiff’s claim that the school had violated the Equal Protection Clause:

Plaintiff alleges Defendants’ policy of allowing “male students” access to the School’s female-only spaces based solely on their “self-declared gender preferences,” subjects female students to privacy violations and discrimination on the basis of sex, constituting an equal protection violation….

Sex-based discrimination turns on whether conduct is permitted for one sex that is denied for the other. Plaintiff cannot claim that a policy that treats the sexes identically, discriminates on the basis of sex. As alleged in her Complaint, the District follows the IDHR’s guidance on bathroom access, which confirms “[a] student must be permitted to access the restrooms or bathrooms, locker rooms and changing rooms that align with their gender identity.” Thus, on its face, the School’s Policy allows all students, regardless of their sex, access to the bathroom that aligned with their gender-identity. All students, Plaintiff included, are allowed access to the restroom that aligns with their gender identity, not just transgender girls; any other interpretation would ignore the fact that transgender boys, cisgender boys, cisgender girls, and gender nonconforming students are all guaranteed the same accommodations as transgender girls. Plaintiff fails to overcome the clear implication that all sexes are treated equally under the policy, and are given the exact same bathroom access.

Importantly, the Supreme Court recently cautioned courts from finding sex-based discrimination in the absence of unequal treatment, as Plaintiff requests. In U.S. v. Skrmetti (2025), the Supreme Court found that a law prohibiting certain medical treatments for transgender minors was not subject to heightened scrutiny because the application of the statute relied on age and a medical procedure, rather than sex, and did not prohibit conduct for one sex that it permitted for the other. Here, Defendants’ Policy, similarly, does not prohibit conduct for one sex that it permits for the other, since ALL students are permitted to use the restroom that aligns with their gender identity. Taking all of Plaintiff’s well-pled facts as true, there is no discrimination on the basis of sex….

The court also rejected plaintiff’s Title IX claim:

Plaintiff alleges that the District creates a hostile educational environment by subjecting female students to the constant risk of encountering “males” in supposedly female-only restrooms, locker rooms, and showers, causing pervasive anxiety, humiliation, distress, and disruption of their education. Plaintiff further alleges that requiring her to potentially miss instruction time to access private restrooms impaired her ability to focus on her education.

Title IX protects individuals from sex-based discrimination and provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance […]”A hostile-environment claim under Title IX requires allegations that conduct is severe, pervasive, and objectively offensive such that it denies equal educational access….

Again, Plaintiff[‘]s failure to identify any sex-based discrimination, dooms her claim. Plaintiff has not shown that Defendants’ policy violates Title IX since its policy guarantees all students equal rights provided under the statute. Despite not making this showing, Plaintiff actually seeks to subject the District to further Title IX liability, by asking the Court to order a policy that relies on sex-based stereotypes—primarily the way a student “behaves, walks, talks, or dresses”—which is definitively unlawful in the Seventh Circuit. That Plaintiff asks the Court to improperly rely on sex stereotypes is evidenced by Plaintiff’s insistent assertion that the student in question should be prohibited from using the girls’ bathrooms for failing to “exhibit” any “outward appearance or other indication of presenting as female,” as well as by her counsel’s oral argument suggesting the transgender student’s “male clothing” and “baggy clothes” “obviously” meant she could not identify as female—despite baggy clothes being a common style worn by teenagers across all genders.

Additionally, Plaintiff’s argument that Title IX actually mandates sex-segregated spaces is wholly unsupported. Plaintiff argues that the recognition of sex-segregated spaces in both federal statutes and interpreting cases vests affirmative statutory requirements to provide Plaintiff with the relief she requests. Plaintiff fails to acknowledge, however, the discretionary language contained in Title IX, which explicitly states “[n]othing contained in this chapter shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes.” The Department of Education’s implementing regulations further state that school’s “may provide separate toilet, locker room, and shower facilities on the basis of sex” so long as they are comparable.

The statute clearly provides schools with the option to maintain sex-separate facilities, but by no means requires schools to do so. Plaintiff seeks to recharacterize plainly discretionary language to mandate that Defendants exclude transgender students from the restroom matching their gender identity, despite no such mandate….

Finally, Plaintiff asks the Court to determine what effect, if any, the Supreme Court’s June 30, 2026, decision in Virginia v. B.P.J., has on its present ruling. In B.P.J., the Supreme Court determined states may maintain separate women’s and men’s sport teams based on “biological sex.” Plaintiff argues, B.P.J.’s determination that “sex” in Title IX be understood to mean only “biological sex” bears directly on the merits of her claims since Defendants “fail[ ] to segregate the sexes at all” “with female students bearing the entire burden of this failure.”

The Court’s decision is not impacted by B.P.J., however, because the Supreme Court explicitly limited its decision to the sports context. See (slip op. at 14) (“the only question here is whether schools may limit women’s and girls’ sports to biological females.”). Furthermore, even if the decision in B. P. J were applicable in this context, which it is not, it only holds that states may maintain separate sports teams based on biological gender, it does not hold that states are required to do so. Finally, any clarification outlined in B. P. J still does not resolve Plaintiff’s threshold failure to allege that she or any other student was treated differently or provided a lesser facility based on sex, biological or otherwise, because Defendants’ Policy is applicable to all genders and not exclusionary of any….

Alexander Thomas Myers, Darcy L. Proctor, and John M. O’Driscoll (Tressler LLP) represent the school district.

The post Court Rejects Claim That Allowing Allegedly Biologically Male Student in Girls' Restroom Violates Equal Protection Clause and Title IX appeared first on Reason.com.

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