D.C. Circuit: Transgender Troops Can Remain in Military, But Ban on New Trans Enlistees Remains for Now

As previously reported, in March 2025 the federal district court for the District of Columbia issued a preliminary injunction barring the military from implementing Executive Orders and military memoranda that exclude transgender persons from serving in the military. Now in Talbott v. United States, (DC Cir., June 1, 2026), the D.C. Circuit Court of Appeals upheld the preliminary injunction insofar as it applies to named plaintiffs who are already serving in the military but vacated the preliminary injunction insofar as it applies to the named plaintiffs seeking to enlist. This result came in a fragmented vote of the 3-judge panel which generated three separate opinions spanning a total of 107 pages.

Judge Wilkins concluded that all the plaintiffs are likely to succeed on the merits of their equal protection challenge and that those already serving in the military are entitled to a preliminary injunction.  However, he held that the case should be remanded to the district court for it to consider whether the balance of equities that justify a preliminary injunction are different for those who are merely seeking to enlist.

Discussing the merits, Judge Wilkins concluded that the current policy on transgender service contains classifications that are not sufficiently related to a legitimate government interest; the policy is grounded on archaic and overbroad generalizations about sex, rather than on a diagnosis of gender dysphoria or medical treatment for the condition; gender dysphoria is treated differently than any other medical condition; and the policy contains classifications that are based on invidious discrimination. He concluded in part:

What has been clearly and repeatedly explained are the foundational premises of the Hegseth Policy:  persons with a “false gender identity” are unfit for the military, and persons with a history of gender dysphoria are also unfit because they lack “honesty, humility, . . . and integrity.”... [T]hose animus-filled reasons were expressly given to justify aspects of the Hegseth Policy....  Unless we are going to fall for the old Groucho Marx line—“who are you going to believe, me or your lying eyes?”—we have direct evidence in this case that animus motivated the classifications in the Hegseth Policy. 

Senior Circuit Judge Rogers filed an opinion concurring in part and dissenting in part. He would affirm the district court's preliminary injunction in full, saying in part:

Given the uncontested record evidence and the nature of this court’s review for abuse of discretion, the district court did not abuse its discretion in enjoining the Hegseth Policy on accession.  This is so even if based on the evidence and argument before it, the district court could have concluded that the retention policy imposes “a much greater hardship” on those currently in the military than those who seek to join it, as Judge Wilkins concludes,... and only enjoined the Hegseth Policy on retention due to  national security concerns.  But the existence of a permissible alternative is not the same as showing that the district court abused its discretion by choosing another permissible alternative....

Judge Walker filed a dissenting opinion. He would reverse in full the district court's grant of a preliminary injunction. He said in part:

Sometimes a case will present an open question informed only by confusing and contradictory precedents.  This is not one of those cases.  Rather, ... an unbroken line of unambiguous authorities directs us to uphold a military policy (1) when it does not conflict with a statutory command, (2) when it reflects a “professional military judgment[],” and (3) when it addresses a perceived, military-wide need regarding the “composition, training, equipping, [or] control” of the armed forces.

The policy challenged today meets those criteria.

ABC News reports on the decision.

Tennessee Enacts Women's Safety and Protection Act

On May 22, Tennessee Governor Bill Lee signed SB0468, the Women's Safety and Protection Act (full text). The new law defines the terms "male" and "female" for purposes of any state law or administrative rule in terms of a person's biological reproductive system. It defines the term "sex" as an individual's biological sex as observed or clinically verified at birth. The law goes on to require public schools, domestic violence shelters, correctional facilities and juvenile detention facilities to designate each multi-occupancy restroom, changing room, and sleeping quarters for the exclusive use of either females, males, or members of the same family. With limited exceptions, it prohibits individuals from entering facilities designated for the opposite sex. ADF issued a press release announcing the governor's signing of the bill.

Washington Foster Care Licensing Agency Modifies Rules in Settlement of Litigation

 As previously reported, in DeGross v. Hunter, (WD WA, April 22, 2026), a Washington federal district court refused to dismiss free speech and free exercise claims against the Washington Department of Children, Youth and Families (DCYF) brought by a Christian couple who objected to the Department's policy on sexual orientation and gender identity. The state has required prospective foster parents to agree to support a foster child's sexual orientation, gender identity and expression (SOGIE), including using their preferred pronouns and chosen name. The parties have now agreed to a settlement in the case and the Washington federal district court yesterday issued a permanent injunction reflecting the parties' agreement. 

The injunction in the case, now captioned DeGross v. Senn, (WD WA, May 20, 2026), bars DCYF from denying or imposing conditions on a foster family home license solely because of a family's religious beliefs, including speech and actions pertaining to marriage, gender, or sexual relationships. Instead DCYF will amend it rules to require foster parents to either connect, or allow DCYF to connect, their foster child to resources and supports relating to their race, religion, culture, sexual orientation, gender identity and expression, developmental capabilities, tribal affiliations, heightened medical needs, behavioral needs, and any other aspect of the child’s individual identity.

The injunction goes on to provide in part:

3. DCYF is prohibited from requiring foster parents to agree to use prescribed words or language, including chosen pronouns, to express views about sexual orientation, gender identity, or gender expression inconsistent with their sincerely held religious beliefs as a condition of licensure....

6. During the licensing process, DCYF shall be permitted to inquire about an applicant’s views regarding SOGIE. This line of inquiry shall be no different from other information gathering concerning the variety of identities of prospective children in care. 

7. Nothing in this Order prohibits DCYF or a child-placing agency from inquiring about a child’s SOGIE before placement, just as it does for all children for all components of their individual characteristics, including identities. 

8. ... Nothing in this order prohibits DCYF from deciding a child’s placements based on its individualized consideration of the child’s needs and of a foster parent’s concerns or limitations (including where religiously motivated) on their ability or willingness to meet the child’s specific needs, including with regard to their SOGIE....

ADF issued a press release announcing the settlement. 

South Carolina Enacts Student Physical Privacy Act

Last Friday, South Carolina Governor Henry McMaster signed into law H4756, the South Carolina Student Physical Privacy Act (full text). The new law (with narrow exceptions) requires public schools and public colleges and universities to designate multi-occupancy restrooms and changing facilities for use only by members of one sex at a time. "Sex" is defined as "a person's biological sex, either male or female, as observed or clinically verified at birth." The new law also requires all public schools and public colleges and universities to "provide for a single-user restroom and changing facility" or an accommodation by allowing temporary exclusive use of a multi-occupancy rest room.

The new law also provides that during any activity or event sponsored by a public school or college, no student shall be required to share sleeping quarters with a member of the opposite sex. Colleges that provide student housing must provide students the option to be housed only with persons of the same sex.

Texas and DOJ Settle With Texas Hospital Ending Its Gender Transition Services and Creating Detransition Clinic

Last Friday, Texas Attorney General Ken Paxton and the U.S. Department of Justice announced an unusual settlement agreement with Texas Children's Hospital ending the hospital's gender transition services. AG Paxton's press release (full text) describing the settlement says in part:

... [The settlement agreement] compels the creation of the country’s first-ever Detransition Clinic; requires the hospital to pay $10 million for billing Texas Medicaid for unallowable and illegal ‘gender-transition’ interventions, including by using false diagnosis codes; and compels the termination and revocation of privileges of multiple physicians....

Under the terms of this landmark agreement, Texas Children’s will establish the first-ever multidisciplinary clinic designed to provide medical care to patients who were subjected to “gender-transition” procedures. This Detransition Clinic will help patients reverse the damage caused by ideologically-motivated physicians who harmed patients by performing dangerous medical interventions for the purpose of “transitioning” them. For the first five years, all services provided through the Detransition Clinic will be funded by Texas Children’s and be free of charge to patients. 

As part of the settlement, Texas Children’s has also agreed to fire, permanently and irrevocably terminate all existing privileges, and never again hire or credential five woke doctors who performed harmful medical interventions on Texans.As part of the settlement, Texas Children’s agrees not to provide “gender-transition” services; will implement a host of compliance and ethics measures.

The U.S. Justice Department also issued a press release saying that the settlement resolves federal claims that Texas Children's violated the Federal Food, Drug, and Cosmetic Act, the False Claims Act, and federal fraud and conspiracy laws.  It noted that "At all times during the investigation, TCH remained cooperative, proactive, and solution-driven..."

Houston Public Media reports on the settlement and quotes Texas Childrens' as saying in part: 

Today, we made the difficult decision to settle with the Texas Attorney General and the Department of Justice, closing a chapter that has been wrought with falsehoods and distractions. To be clear – we are settling to protect our resources from endless and costly litigation. This settlement will allow us to redirect those precious resources to focus on the life-saving care and groundbreaking discoveries of our exceptional clinicians and scientists.

[Thanks to Scott Mange for the lead.]

ED Says Smith College Should Lose Title IX Exception for Single-Sex Colleges Because It Admits "Biological Men"

The U.S. Department of Education’s Office for Civil Rights announced on Monday that it has opened a Title IX sex-discrimination investigation of Smith College for admitting transgender women to the all-women's school. The DOE announcement said in part:

Today, the U.S. Department of Education’s Office for Civil Rights (OCR) opened an investigation into Smith College, one of the nation’s largest all-women's colleges, for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams....

Title IX contains a single-sex exception that allows colleges to enroll all-male or all-female student bodies—but the exception applies on the basis of biological sex difference, not subjective gender identity. An all-girls college that enrolls male students professing a female identity would cease to qualify as single sex under Title IX.

When an institution holds itself out as being an all-women’s college, it is not just promising to deliver female-only dorms and bathrooms, and single-sex athletics; it is also committing to maintain a student body that makes possible a particular form of sorority and camaraderie....  

The investigation stems from a civil rights complaint filed last year by the advocacy organization Defending Education. Politico reports on the Department's action.

Suit Challenges Idaho's Ban on Transgender Use of Gender-Conforming Bathrooms

Six transgender residents of Idaho filed a class-action lawsuit last week in an Idaho federal district court challenging recently enacted HB 752, an Idaho law that prohibits "knowingly and willfully enter[ing] a restroom or changing room in a government-owned building or a place of public accommodation ... that is designated for use by the opposite biological sex of such person...." The statute includes exceptions to the ban for various emergency, health-related and similar situations. A violation is punishable by up to one year in prison. A second violation within five years is punishable by up to five years in prison. The complaint (full text) in Jackson-Edney v. Labrador, (D ID, filed 4/29/2026), alleges that the law is void for vagueness and violates the Equal Protection Clause by discriminating on the basis of sex and transgender status. It also contends that it violates plaintiffs' right to informational privacy by compelling disclosure of a person's transgender status.

ACLU issued a press release announcing the filing of the lawsuit.

1st Amendment Challenges to State's Foster Care Licensing Policy Move Ahead

In DeGross v. Hunter, (WD WA, April 22, 2026), a Washington federal district court refused to dismiss free speech and free exercise claims against the Washington Department of Children, Youth and Families brought by a Christian couple who object to the Department's policy on sexual orientation and gender identity. The state requires prospective foster parents to agree to support a foster child's sexual orientation, gender identity and expression (SOGIE), including using their preferred pronouns and chosen name. The DeGrosses were granted only a limited foster care license because they would not agree to fully implement the state's policy. The court said in part:

The DeGrosses have plausible alleged that Policy § 1520 draws distinctions based on the message the speaker conveys....  Policy § 1520 restricts certain speech by prospective parents on the topic of SOGIE, while requiring speech that aligns with the state’s perspective.... 

In essence, the Department has forced the DeGrosses to choose between forfeiting their freedom of speech to obtain an unrestricted license, or upholding their beliefs surrounding SOGIE, and receiving a less-favorable license subject to certain restrictions.   

The DeGrosses have carried their burden to show that the Department’s enforcement of Policy § 1520 plausibly constitutes impermissible viewpoint discrimination.  Thus, the DeGrosses alleged sufficient facts to show a First Amendment violation unless the government can satisfy strict scrutiny....

... [T]he DeGrosses plausibly allege the Department’s policy at issue here puts the DeGrosses in an unfair predicament: they may obtain an unrestricted foster care license but only if they disavow their religious beliefs.... "[S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." ...

... “A law is not generally applicable if it ‘invites’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions.’”... 

... [T]he DeGrosses have carried their burden, at the motion to dismiss stage, to show that § 1520 is neither neutral nor generally applicable.  Thus, the DeGrosses alleged sufficient facts to show a First Amendment violation of freedom of religion unless Defendants can satisfy strict scrutiny.  Based on the limited record before it, the Court is unable to determine at this time whether Defendants can satisfy strict scrutiny.  Thus, the DeGrosses’ freedom of religion claim survives the motion to dismiss.

The court however dismissed plaintiffs' equal protection claim.

European Court Invalidates Hungarian Law Shielding Minors from Transgender and Homosexual Depictions

In European Commission v. Hungary, (CJEU, April 21, 2026), the Court of Justice of the European Union held that Hungary's Law on the Protection of Children and other provisions of Hungarian law adopted in 2021 violate the Treaty on European Union and other EU rules. Hungary's Law on the Protection of Children provides in part:

‘In order to safeguard the objectives set out in this Law and to ensure the protection of children’s rights, making the following available to persons under the age of 18 shall be prohibited: pornography, as well as content that depicts sexuality for its own purposes, or that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.’

The European Commission brought an action against Hungary challenging its 2021 enactments. In a 621-paragraph opinion, the Court of Justice said in part:

446... [T]he fact that a legislative act ... states, according to its title, that it is laying down ‘stricter measures in respect of persons convicted of paedophilia’, while providing that minors must be protected from portrayals of deviation from ... the sex assigned at birth... or of homosexuality, is also such as to amplify the offensive and stigmatising effect of the provisions ..., or even to encourage the development of hateful conduct towards non-cisgender or non-heterosexual persons, given that such persons could thereby be associated with persons convicted of paedophilia....

487   ... [T]he result of the provisions at issue is the stigmatisation and marginalisation of non-cisgender persons – including transgender persons – or non-heterosexual persons, who constitute a minority group of persons, solely on the basis of their gender identity or their sexual orientation.

488    ... Hungary has, in a binding legal act, made an association between the fact of not being cisgender or not being heterosexual, on the one hand, and being convicted of paedophilia, on the other. Such an association, through its offensive and stigmatising effect – an association which is, moreover, such as to encourage the development of hateful conduct towards such persons – violates the human dignity of those persons, for the purposes of Article 1 of the Charter.

489    ... [T]hat association and that stigmatisation entail a group of persons forming an integral part of a society in which pluralism prevails being treated as a threat to that society meriting special legal treatment, which results in such persons’ social ‘invisibility’ being established, maintained, or reinforced, in breach of Article 1 of the Charter....

The Court has also issued a press release and a video explaining the decision. Politico reports on the decision.  [Thanks to Scott Mange for the lead.]

Certiorari Denied in Challenge to School Policy on Gender Transitioning Students

The U.S. Supreme Court yesterday denied review in Foote v. Ludlow School Committee, (Docket No. 25-77, certiorari denied 4/20/2026). (Order List). In the case, the U.S. 1st Circuit Court of Appeals held that petitioners' parental rights protected by the 14th Amendment were not infringed by a school Protocol requiring staff to use a student's requested name and gender pronouns in school without notifying parents of the request unless the student consents. Parents' objections to the policy were not religious, but were moral and scientific. Reuters reports on the Supreme Court's action.

Catholic Hospice Sues Over NY Standards for Care of Transgender Patients

Last week, Dominican Sisters who operate a home that provides palliative care for indigent, terminally ill cancer patients filed suit in a New York federal district court challenging New York's requirements for care of transgender patients. The complaint (full text) in Dominican Sisters of Hawthorne v. Hochul, filed 4/6/2026) alleges in part:

New York’s LGBTQ Long-Term Care Facility Residents’ Bill of Rights ...  require long-term care facilities to assign patients to rooms based on stated “gender identity” rather than biological sex even over the opposition of the roommate, to permit residents and their visitors of one sex to access bathrooms set aside for those of the opposite sex, to use patients’ “preferred pronouns” even when the patient is not present, to use language and to “create communities” affirming patients’ sexual preferences, to accommodate patients’ desire for extramarital relations, and to post notices affirming compliance with these requirements....

... The Dominican Sisters of Hawthorne and Rosary Hill Home operate in accordance with the Ethical and Religious Directives and the teachings of the Catholic Church. They cannot comply with the Mandate without violating these sincerely held religious beliefs.....

Requiring a person to identify another by a sex other than his or her God-gifted sex would therefore require such a person to act against central, unchangeable and architectural teachings of the Catholic faith. It would contradict the teachings of the Bible concerning God’s creative sovereignty, contradict reason and truth, and betray our sacred obligation not to knowingly harm other persons, particularly the most vulnerable. The implications are so much greater than whether to utter the words “he” or “she.” Indeed, to demand that a Catholic deny another’s sex is to require him or her to affirm another religious worldview....

The complaint alleges 7 counts: Free Exercise; Religious Autonomy Doctrine; Ministerial Exception; Establishment Clause; Equal Protection; Free Speech; and Expressive Association.

NewsNation reports on the lawsuit.

DOJ Investigating California and Maine for Housing Transgender Women in Women's Prisons

Last Thursday, the Department of Justice announced that it has notified the governors of California and Maine that DOJ is initiating investigations into their housing of transgender women who have not undergone sex reassignment surgery in women's prisons. DOJ's press release reads in part:

“California’s Transgender Respect, Agency, and Dignity Act has provided none of these qualities to the female inmates of state prisons who have been forced to share space with biological men who are violent felons,” said First Assistant United States Attorney Bill Essayli of the Central District of California.  “Our Constitution protects women from having their civil rights violated by harmful state legislation wrapped in the language of ‘equity’ and ‘progress.’”...

In California, the Justice Department will investigate widely reported allegations of deprivation of female prisoners’ rights, including the First Amendment’s guarantees of freedom of speech and free exercise of religion, the Eighth Amendment’s protection from cruel and unusual punishment, and the Fourteenth Amendment’s Equal Protection Clause.  There have been allegations of sexual assaults, rape, voyeurism and a pervasive climate of sexual intimidation due to the presence of males in the women’s prison.

Under California law, men in state prisons, including violent felons charged with sex crimes and who have intact genitals, can request transfer to women’s prisons based on self-identification as transgender.

In Maine, the Justice Department will investigate allegations that Maine has allowed a biological male inmate to remain housed with women despite complaints that the male inmate has assaulted or harassed several female inmates.

9th Circuit Denies En Banc Review of Spa's Policy on Transgender Women, With Unusually Controversial Dissent

Olympus Spa v. Armstrong, (9th Cir., March 12, 2026), is the denial of a panel and en banc rehearings to two Korean Spas that lost their 1st Amendment challenges to application of Washington state's anti-discrimination provisions to the spas admission policies. The spas admitted only "biological women", including transgender women who had received gender confirmation surgery. They excluded transgender women who had not completed that surgery. The original 3-judge panel denied a rehearing, but issued an amended majority opinion amending the opinion originally issued on May 29, 2025 (full text of original opinion). The court then denied en banc review.  Three opinions dissenting from the denial of en banc review were filed. Judge VanDyke's dissenting opinion led to an unusual Statement concurred in by 27 Ninth Circuit judges saying:

The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to “disagree without being disagreeable.”1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have “collectively lost their minds,” or that they are “woke judges[]” “complicit” in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.

Supreme Court in Shadow Docket Case Rejects California's Policy on Informing Parents of Student's Gender Transition

On Monday evening, the U.S. Supreme Court in Mirabelli v. Bonta, (Sup. Ct., March 2, 2026), barred enforcement against objecting parents of a controversial California school policy that requires student consent before disclosing to parents a student's gender transitioning in school. A California federal district court had enjoined enforcement of the policy in a challenge by parents and teachers. The 9th Circuit Court of Appeals, however, stayed the district court's injunction, thus reinstating the policy. In a per curiam opinion, the Supreme Court ruled for the parents.  It vacated the 9th Circuit's stay as to parents who object to the policy, but left the stay in place as to teachers. Justices Thomas and Alito would have vacated the injunction as to teachers as well. Justices Jackson, Kagan and Sotomayor dissented.

The per curiam opinion says in part:

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim.  California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” ...  The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs....

The same is true for the subclass of parents who object to those policies on due process grounds.  Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” ... The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health....

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, filed a concurring opinion, saying in part:

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization..... But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects....

 ... [C]ontrary to the dissent’s charge, granting interim relief is not a sign of the Court’s “impatience” to reach the merits.... Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents.... 

Justice Kagan, joined by Justice Jackson, filed a dissenting opinion, saying in part:

Today’s decision shows, not for the first time, how our emergency docket can malfunction.  A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case’s merits. The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute.  It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks. And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation....

As to due process particularly... I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make..... On the other side of ledger, of course, a State has critical interests in the care and education of children.  But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line.  And that would entitle the parents, at the end of the day, to relief. 

The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes....

Justice Sotomayor, without writing or joining an opinion, stated that she would have left the 9th Circuit's injunction in place both as to parents and teachers.

SCOTUSblog reports on the decision.

Lawsuit Challenges Recent Kansas Law on Sex Designation for Restrooms, Birth Certificates, Driver's Licenses

On Feb.18, the Kansas legislature overrode Governor Laura Kelly's veto of SB 244 which requires the use of biological sex at birth to define usage of rest rooms and locker rooms in public buildings, and the use of biological sex on birth certificates and driver's licenses. It calls for correction of previously issued birth certificates and reissuance of previously issued driver's licenses.

Last week, suit was filed in a Kansas state trial court challenging the constitutionality of SB 244 under various provision of the Kansas state Constitution. The complaint (full text) in Doe v. State of Kansas ex rel. Kobach, (KS Dist. Ct., filed 2/26/2026) alleges in part:

2. The Act targets transgender Kansans across multiple, unrelated domains of their lives. This sweeping law restricts transgender individuals from obtaining driver’s licenses reflecting their gender identity and bans transgender people from accessing restrooms or other single-sex spaces in a range of public places including libraries, courthouses, state parks, hospitals, and interstate rest stops.  SB 244’s restrictions extend beyond just government buildings, applying also to buildings owned by or leased from the government, even if they are controlled by private entities. By targeting transgender Kansans, the Act violates the Kansas Constitution’s guarantees of personal autonomy, privacy, equality under the law, due process, and free expression. It also violates the Kansas Constitution’s single-subject and clear title requirements.  

3. SB 244 is just the most recent law in a shameful litany of statutes enacted by the Kansas Legislature meant to discriminate against and dehumanize transgender people. 

ACLU issued a press release announcing the filing of the lawsuit.

EEOC Says Federal Agencies May Base Restroom Access on Biological Sex

 In a February 26 press release, the EEOC announced:

The U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 today to approve a federal sector appellate decision adjudicating an appeal regarding access to intimate spaces, including bathrooms and locker rooms, in federal workplaces under Title VII of the Civil Rights Act of 1964, as amended....

 “Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” said EEOC Chair Andrea Lucas. “When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

When adjudicating appeals of alleged employment discrimination in the federal sector, the EEOC applies longstanding precedent, including relevant Supreme Court decisions, to the facts of the case. In this case, however, such precedent does not exist, as federal courts have not determined whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex. In the absence of authoritative court precedent, the EEOC used the traditional tools of statutory construction, turning first to the ordinary meaning of the statute’s text and ensuring that the decision is further anchored by the Supreme Court’s precedents in comparable areas of law.

In applying the traditional tools of statutory construction, the EEOC found that Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces; and permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite sex-facilities. Today’s opinion overturns a prior EEOC federal sector appellate decision (Lusardi v. Department of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (2015)) with respect to the portion of that opinion addressing a federal employee’s access to an opposite-sex bathroom based on “gender identity.”

As with all of the EEOC’s appellate decisions adjudicating federal agency employment discrimination complaints, this decision applies only to federal agencies subject to the EEOC’s administrative complaint process for federal employees. It does not apply to private sector employers, nor does it bind any federal court.

The Agency's action approved a 23-page Federal Sector Appellate Decision, Selina S. v. Driscoll, (EEOC Federal Sector Appeal, Feb. 26, 2026), a case brought by a civilian employee of the Army.

9th Circuit: Anti-Transgender Comments Justify Mayor's Veto of Membership on Police Advisory Board

In Hodges v. Gloria, (9th Cir., Feb. 26, 2026), the U.S. 9th Circuit Court of Appeals rejected free speech and free exercise challenges to the San Diego mayor's veto of the reappointment of a voluntary member of the city's Police Advisory Board.  The mayor vetoed the reappointment of Dennis Hodges, a correctional officer and pastor, because of Hodges' public comments that he considered “transgenderism” to be a sin just like adultery and fornication. The court said in part:

Hodges asserts that he was not a policymaker and that government officials may not create religious tests for holding public office.  However, a consistent line of cases ... hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when “commonality of political purpose” is an appropriate requirement for the volunteer’s services....

Hodges has not shown that the district court erred in rejecting his free exercise claim.  To prevail on this claim, Hodges would have to show that even though the veto of his reappointment did not violate his free speech rights, it violated his free exercise rights because of his underlying religious beliefs.  He offers no case law supporting such a proposition.  Moreover, he does not explain how his religious motive for making public statements changes the court’s evaluation of his claim....

DOJ Opens Title IX Investigations of 3 Michigan School Districts

The Department of Justice announced yesterday that it has opened Title IX investigations into three Michigan school districts. The announcement said in part:

Today, the Justice Department’s Civil Rights Division launched investigations into three Michigan public school districts: the Detroit Public Schools Community District, Godfrey-Lee Public Schools, and the Lansing School District ... to determine whether they have included sexual orientation and gender ideology (SOGI) content in any class for grades pre-K-12. If they are teaching SOGI-related content, the investigations will examine whether the schools have notified parents of their right to opt their children out of such instruction. The investigation will also assess whether the Michigan School Districts limit access to single-sex intimate spaces, such as bathrooms and locker rooms, based on biological sex....

4th Circuit: School Gender Identity Guidelines Do Not Violate Teacher's 1st Amendment Rights

 In Polk v. Montgomery County Public Schools, (4th Cir., Jan. 28, 2026), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, affirmed a Maryland federal district court's denial of a preliminary injunction sought by a substitute teacher who objected on free speech and free exercise grounds to the school district's Guidelines for Student Gender Identity. The court rejected plaintiff's free exercise claim, concluding that the Guidelines are neutral and generally applicable and that they satisfy the rational basis standard. The majority said in part:

... Polk believes that gender is rigid, based on her understanding of Christianity.  And referring to her students by a gender that is not consistent with the student’s gender assigned at birth places a requirement on Polk, that she says is at odds with her faith....

Distilled to its core, the thrust of Polk’s appellate position is that, because persons who hold religious views are those most impacted by the Guidelines, they cannot be deemed “neutral.” But that logic turns the well-established neutrality analysis on its head.  As the court explained, the Complaint “alleges no facts from which the Court could infer religious animus.” ...  That a certain religious practice is incidentally burdened by the Guidelines is not sufficient. Rather, the Guidelines must be motivated by religious hostility....

The majority also rejected plaintiff's free speech claim, saying in part:

 ... [W]e agree with the district court that the Guidelines’s mandate does not concern the speech of a private citizen, but establishes the official duties of a public-school teacher.  More pointedly, how a teacher addresses a particular student in a particular classroom — and whether a teacher communicates with a student’s parent — is merely a part of that teacher’s job description....

 ... And “[w]hen an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer.  The employee is effectively the employer’s spokesperson.” ...

Judge Wilkinson dissented, contending that the Guidelines violated plaintiff's free speech rights.  He said in part:

In holding instead that the Free Speech Clause does not provide even qualified protection to Ms. Polk’s speech, the majority leaves teachers completely vulnerable to becoming the unwilling mouthpieces of government messaging. Although transgender rights advocates may now cheer the majority opinion, they will find today’s cure in truth a poison when states enact legally indistinguishable policies preventing teachers from using preferred pronouns in schools. And because nothing prevents school systems from pushing this newfound control much further than mere pronoun usage, I respectfully dissent....

This case is, without question, about compelled speech—a detail to which the majority gives short shrift....

... My qualm with the majority is simply that we cannot categorically write all in-class speech out of the First Amendment. Garcetti has its place, but chiefly with regard to core curricular functions. Speech at the noncurricular margins of a teacher’s job should remain subject to the same standards that we have always applied. This is no jurisprudential revolution....

 Ms. Polk’s case is one of many plaguing our nation’s educational system. Across all levels of education—elementary to college—LGBT rights, DEI, antisemitism, systemic racism, and innumerable other issues have made our schools hotbeds of vehement sociopolitical debate. Silencing voices and compelling affirmations to government preferred messaging do nothing to temper the vitriol; on the contrary, such actions foster further hostility....

Parents Seek Emergency Order from SCOTUS Reinstating Trial Court's Voiding of School Policy on Disclosure of Students' Gender Transition

As previously reported, last December in Mirabelli v. Bonta, a California federal district court held unconstitutional the policy of California school boards that bars public school teachers and staff from informing parents about changes in a child’s gender expression unless the child consents. On January 5, the U.S. 9th Circuit Court of Appeals granted a stay pending appeal of the district court's injunction. Now plaintiffs in the case have filed an Emergency Application with the U.S. Supreme Court asking it to vacate the 9th Circuit's stay. (Mirabelli v. Bonta, (Sup.Ct., filed 1/8/2026). (Full text of 9th Circuit's stay order and Application to Supreme Court).

Education Week reports on these developments.