In an opinion issued last week, the Seventh Circuit Court of Appeals decided in favor of a transgender student who challenged his high school’s decision to limit his access to boys’ communal bathrooms.
Ash Whitaker, a high school senior, brought the lawsuit to seek immediate court intervention to allow him to use communal bathrooms consistent with his male gender identity during his final year in high school. Whitaker was identified as female at birth, but transitioned to identifying as male in eighth grade. During his junior year, Whitaker used male bathrooms for approximately six months without incident until a teacher reported his use to the school’s administration. At that time, Whitaker was directed to use either the gender-neutral bathroom or the girls’ bathroom.
Whitaker brought a lawsuit against the school district, arguing that the district’s refusal to allow him to use the boys’ bathrooms violated Title IX’s prohibition against sex discrimination and the Equal Protection clause of the U.S. Constitution. Whitaker asked for preliminary injunctive relief, seeking an immediate court order granting him access to the boys’ bathrooms while the lawsuit progressed.
The school district argued that the prohibition on sex discrimination does not include transgender discrimination. It also argued that the court should not interfere in the school’s reliance on the student’s birth certificate to determine the bathroom access. The school district argued that it is necessary to use a student’s birth certificate to determine bathroom access to protect the privacy of all students.
Along with arguing that the school district’s actions were sex discrimination, Whitaker argued that the school should have considered other factors in determining whether he qualified as a boy for purposes of bathroom access, such as letters submitted by his pediatrician and his reported gender identity. Whitaker asserted that the denial of access to the boys’ bathroom was causing him harm due to a medical condition called vasovagal syncope that rendered him susceptible to fainting or seizures if he became dehydrated. He asserted that because the school district would not allow him to use the boys’ bathroom, he limited his beverage intake in order to avoid using the restroom, thereby becoming dehydrated. Whitaker also alleged that he was stigmatized as a result of not being able to use the boys’ restroom and was the victim of educational and emotional harm, including suicidal ideations.
Whitaker prevailed before the federal district court in obtaining an injunction that allowed him to use the communal boys’ bathroom during his senior year. The school district appealed the preliminary decision to the Seventh Circuit, which has jurisdiction over both Wisconsin and Illinois. The Seventh Circuit upheld the preliminary injunction, determining that Whitaker was likely going to win on the merits of his claim and that there would be irreparable harm to him if he was not allowed to use the boys’ restroom.
The Seventh Circuit found that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity. . . violates Title IX.” It also found that the gender neutral alternative bathroom provided by the Kenosha school district did not eliminate the potential violation, because the available gender neutral bathroom was too remote from Whitaker’s classrooms and because he was the only student given access so he was stigmatized and treated differently than other students. The court also found that Whitaker was likely to succeed on his claim that the district’s policy violated the Equal Protection clause in that it treated Whitaker differently than other students.
The court found that the harm to Whitaker in denying him bathroom access was greater than the harm to the district in granting access. In reaching this decision, the Seventh Circuit acknowledged the School District’s concern for student privacy explaining that “[w]hile this court certainly recognizes that the School District has a legitimate interest in ensuring bathroom privacy rights are protected, this interest must be weighed against the facts of the case and not just examined in the abstract, to determine whether this justification is genuine.” On the facts before them in this case, the Seventh Circuit found that the School District’s privacy argument was based “upon sheer conjecture and abstraction.” In particular, Whitaker had used the communal boys’ bathroom with no complaint by another student for a significant period of time.
This decision is precedential in Illinois and should be considered by Illinois schools when addressing this issue of bathroom access for transgender students through procedures, policies, or otherwise.