USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 125 of 150
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (reviewing “alarming” statistics that document the “discrimination, harassment, and violence” faced by transgender individuals). Evidence abounds that transgender individuals have historically been, and continue to be, subjected to discrimination.[1] Thus, the first factor weighs in favor of finding that transgender individuals form a quasi-suspect class.
For the second factor, we determine whether the defining characteristic of the class frequently bears no relation to the class’s ability to contribute to society. At trial, Dr. Adkins offered unrebutted expert testimony that being transgender did not limit a person’s
- ↑ The majority opinion expresses “grave doubt” that transgender individuals belong to a quasi-suspect class, noting that the Supreme Court has declined to designate individuals with intellectual disabilities as such. Maj. Op. at 18 n.5 (internal quotation marks omitted). In declining to deem those with intellectual disabilities members of a quasi-suspect class, the Court emphasized “the distinctive legislative response, both national and state,” demonstrating that “lawmakers have been addressing their difficulties in a manner that belies a continuing apathy or prejudice.” Cleburne, 473 U.S. at 443; see id. at 444 (explaining that legislation had “singl[ed] out the [intellectually disabled] for special treatment” and that further legislative efforts to afford additional special treatment should be encouraged rather than potentially discouraged with the application of heightened scrutiny). This included remedial efforts in funding, hiring, government services, and education. Id. at 443. This is not at all the case with transgender individuals. Instead of a nationwide effort to provide “special treatment” for members of this group, rampant discrimination continues largely unchecked. Indeed, legislation that has the effect of limiting the rights of transgender individuals has been introduced (and in some cases, enacted) by legislatures in this country. No precedent prevents us from concluding that transgender people are a quasi-suspect class.
