A federal appeals court ruling has once again put the issue of student transgender rights on the national stage, upholding an injunction requiring a Wisconsin school district to allow a high school student who was born female, but now identifies as male, to use the boys’ restroom.
“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” of the Education Amendments of 1972, said the opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago. The panel also said the U.S. Constitution’s equal-protection clause supports the student in his dispute with the Kenosha, Wis., district.
Lengthy Battle
The May 30 decision is the latest on an issue that has percolated around the country and came close to being decided by the U.S. Supreme Court before the high court returned a Virginia case to another federal appeals court for further consideration. The Kenosha district last week had yet to decide whether to seek a rehearing from the full 7th Circuit or an appeal to the Supreme Court.
The 7th Circuit court ruled in favor of Ashton Whitaker, a 17-year-old senior at Tremper High School in Kenosha, 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 gender-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 that restroom in violation of the restriction.
Whitaker and his mother, Melissa Whitaker, sued the Kenosha district in 2016, alleging that his treatment violated Title IX, which prohibits sex discrimination in schools that receive federal funding, and under the 14th Amendment’s equal-protection clause.
A federal district court rejected the school district’s motion to dismiss the suit and granted Whitaker a preliminary injunction that barred 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 the 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.
Sex Stereotyping
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 appeals 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.”
Parties Respond
Speaking on a conference call with reporters after the ruling, Ash Whitaker said that his case had been an emotional roller coaster, but that 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 was looking forward to his graduation ceremony from Tremper High, and to having school officials 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.
The school district 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 nonconformity, 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 or a Supreme Court appeal.
