Federal appeals courts are facing a flood of cases in 2026 that will determine transgender students’ rights in public schools, from their right to play on sports teams to using their preferred restroom.
But circuits are largely split on the overarching issues in those appeals, including whether the US Constitution’s equal protection clause and Title IX of the Education Amendments of 1972—the federal statute barring sex discrimination in educational activities receiving federal funding—provide protections for transgender status.
Title IX
The Trump administration redefined the federal government’s view of Title IX—that “sex” under the statute applies to an individual’s sex at birth, either male or female—which spurred lawsuits between states and the federal government.
But “the interpretation of Title IX is pretty dramatically different by circuit,” said Elana Redfield, federal policy director of UCLA Law’s Williams Institute. The courts are likely to “see a lot of conflict about whether and how states are entitled to protect and provide for trans youth in light of the federal opposition.”
The Fourth Circuit has said discrimination based on a person’s gender identity is sex discrimination under Title IX. And the Seventh Circuit held that a policy requiring individuals to use restrooms that don’t conform with their gender identity violates Title IX. But the Eleventh Circuit has held that gender identity and transgender status are separate from Title IX’s “sex” protections.
Female Athletes United, a cisgender female advocacy group, will urge the Eighth Circuitin January to reverse a ruling allowing Minnesota to permit transgender students to play on sports teams aligning with their gender identity. The Third Circuit is considering a challenge to similar policies in Pennsylvania.
Opponents of inclusive policies argue that biological males have athletic advantages over biological females, and therefore, allowing students to join teams based on their gender identity harms equal opportunities for women.
“One thing I think we’re seeing emerging is this idea that you can separate someone’s assigned sex from their gender identity” regardless of whether it harms them, Redfield said, pointing to the US Supreme Court’s ruling reviving a Trump administration policy requiring passports to reflect the holder’s sex assigned at birth.
Circuits will also navigate evolving Supreme Court precedent. The justices held in United States v. Skrmetti that a Tennessee law barring gender dysphoria treatments for minors passes constitutional muster, since it applies regardless of sex or transgender status.
Skrmetti is indicative of where the high court is going, said Jonathan Scruggs, senior counsel at Alliance Defending Freedom. ADF represents Female Athletes United.
One of the main arguments in these cases is whether “the definition of biological sex is problematic, or is the very definition of biological sex transgender discrimination? Skrmetti suggested no, because they had to define sex in that law,” Scruggs said. “You see the same arguments being replayed in the privacy and sports context, that biology still matters.”
The high court in 2026 will rule on two challenges to statewide bans on transgender girls playing female sports teams, West Virginia v. B.P.J. and Little v. Hecox.
“The big question in those two is not just about trans rights, but what they’re doing with sex discrimination law” and the degree to which the justices will permit governments to say a policy is “based in biology, and therefore it’s not based in sex discrimination,” said Amanda Shanor, a visiting professor at the University of Pennsylvania’s Carey Law School.
States’ Interests
The Tenth Circuit could further entrench the circuit splits in a suit brought by transgender students claiming an Oklahoma law requiring students to use restrooms corresponding with their sex at birth violates the equal protection clause. A lower court rejected the lawsuit, citing the government’s interest in protecting students’ privacy and safety.
“It goes to this question about animus,” Shanor said, “and how much are the courts going to require the government to show facts” to support privacy interests, which may be different depending on whether it’s a bathroom with individual stalls versus an open changing area.
The Sexuality and Gender Alliance at Boise High School, an LGBTQ+ students rights group, is asking the Ninth Circuit to address that question.
The Ninth Circuit rejected the group’s facial constitutional challenge to an Idaho law requiring students to use bathrooms aligning with their sex at birth. SAGA, which shifted to an as-applied challenge, argued the Ninth Circuit declined to rule in its earlier appeal that applying the law to restrooms would survive intermediate scrutiny, and acknowledged restrooms don’t pose the same privacy concerns as other facilities.
The Seventh Circuit will hear arguments in January from a cisgender female student challenging an Illinois school district’s policy allowing students to use bathrooms based on their gender identity “without requiring objective assessment or evidence of gender identity.”
Pronoun Policies
The Second, Third, and Fourth circuits are also facing suits brought by teachers and parents related to schools’ pronoun policies.
A Christian teacher is urging the Fourth Circuit to revive her First Amendment claims over Montgomery County Public Schools’ policies requiring her to address students by their preferred pronouns. Kimberly Polk argues that requiring her to do so violates her right to free speech and free exercise of religion.
“I think you will continue to see those percolate up,” Scruggs said. “Some courts say ‘teachers, they’re just speaking for the government, and schools can force teachers to do this,’ while other courts say ‘no, that goes too far, at the very least you need to think about religious accommodation or potential compelled speech issues.’”
A divided Eleventh Circuit in July held that a Florida transgender teacher could be forced under state law to refer to herself as her sex assigned at birth, since she was acting as a government worker rather than a private citizen when she used those identifiers with students in class.
A split Seventh Circuit in August revived a Christian teacher’s suit over an Indiana school’s policy requiring him to use students’ preferred names and pronouns.
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