A federal appeals court on Tuesday upheld an injunction requiring a Wisconsin school district to allow a transgender high school student to use the boys restroom, ruling that Title IX and the U.S. Constitution’s equal-protection clause support the student who was born female, but now identifies as male.
“A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender nonconformance, which in turn violates Title IX,” said the opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago.
The decision is the latest on an issue that has percolated around the country and came close to be decided by the U.S. Supreme Court before the court returned a Virginia case to another federal appeals court for further consideration.
The 7th Circuit court ruled in favor of Ashton Whitaker, a 17-year-old senior at Tremper High School in Kenosha, Wis., who began to identify as a boy in 2013. In fall 2014, at the beginning of his sophomore year, Whitaker told classmates and teachers about his transition and in 2016 began hormone replacement therapy, court papers say.
Whitaker was widely accepted in his school, but administrators refused his requests to use the boys’ restrooms, offering instead a general-neutral restroom that was a distant walk from most of his classes. The student began restricting his fluid intake, which caused medical problems and even thoughts of suicide, his suit says.
School officials at one point told Whitaker’s mother that the student would need to complete a surgical transition to be allowed to use the boys’ restroom. Whitaker often used the boys’ restroom in violation of the restriction.
Whitaker and his mother, Melissa Whitaker, sued the Kenosha Unified School District in 2016 alleging that his treatment violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded schools, and under the 14th Amendment’s equal-protection clause.
A federal district court rejected the school district’s motion to dismiss and granted Whitaker a preliminary injunction that bars the school district from denying the student the use of the boys’ restroom, as well as from disciplining him for or monitoring such use.
The school district appealed, and in its May 30 decision in Whitaker v. Kenosha Unified School District No. 1, the 7th Circuit panel ruled for the student on one point after another.
“The school district actually exacerbated the harm, when it dismissed [Whitaker] to a separate bathroom where he was the only student who had access,” Judge Ann Claire Williams wrote for the panel, going on to use the student’s preferred first name. “This action further stigmatized Ash, indicating that he was ‘different’ because he was a transgender boy.”
Although the Whitakers had also filed a complaint with the U.S. Department of Education’s office for civil rights, the 7th Circuit’s decision did not turn on any federal interpretation of Title IX, as had the high-profile case involving Virginia transgender student Gavin Grimm.
Williams said there is much support in federal anti-discrimination law for reading Title IX’s prohibition on sex discrimination in education to include disparate treatment of a transgender student.
“The school district’s policy ... subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non-transgender students, in violation of Title IX,” Williams said. “Providing a gender‐neutral alternative is not sufficient to relieve the school district from liability, as it is the policy itself which violates the act.”
As for the equal-protection clause, the court said Whitaker was subject to a form of sex stereotyping that had to be given heightened scrutiny.
“Here, the school district’s policy cannot be stated without referencing sex, as the school district decides which bathroom a student may use based upon the sex listed on the student’s birth certificate,” the court said. “This policy is inherently based upon a sex‐classification and heightened review applies.”
The school district did not meet its burden to justify the policy, said Williams, who said the district’s arguments about guaranteeing student privacy in the restroom were based on “sheer conjecture and abstraction.”
Speaking on a conference call with reporters, Ash Whitaker said his case had been an emotional roller coaster but the 7th Circuit decision meant his senior year was ending on a high note.
“This helps other trans kids to live authentically,” he said.
He will graduate from Tremper High on Saturday, with school officials expected to call him by his preferred name in the graduation line, he said.
Because the case includes a claim for damages, it will remain active after Whitaker’s graduation, with the school district possibly appealing the 7th Circuit ruling and the merits of the case moving forward in the trial court, said Joseph Wardenski, one of Whitaker’s lawyers.
Still, the 7th Circuit decision “sends a clear message to schools across the country that they should be protecting all students,” he said.
[UPDATED Wednesday 7:45 a.m.] The school district early Wednesday released a statement by its private lawyer, Ronald S. Stadler, expressing disappointment in the decision.
The 7th Circuit court “expanded the ‘sex-stereotyping’ theory from a recognition that one cannot be discriminated against because of gender non-conformity, such as not wearing clothing typically associated with the individual’s sex, and instead created a new right extending discrimination because of sex to now include the status of being transgender,” he said.
“The court also rejected the district’s position that there is a rational basis for requiring men to use men’s rooms and women to use women’s rooms,” Stadler said. “Instead, the court believes there is no harm in allowing men and women to use the same restroom.”
He noted that the case still faces proceedings at the trial stage, but that the district will analyze whether to seek a rehearing of the panel’s decision before the full 7th Circuit or appeal it to the Supreme Court.
A version of this news article first appeared in The School Law Blog.