On May 30, 2017, the Seventh Circuit Court of Appeals ruled that a transgender student has the right to use the bathroom that aligns with his gender identity in Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al. This ruling is potentially groundbreaking, and could open the door for other courts to find that both Title IX and the Equal Protection Clause protect transgender students from discrimination in schools.
In the opening line of her opinion, Judge Ann Claire Williams set the scene as follows: “Ashton (‘Ash’) Whitaker is a 17 year-old high school senior who has what would seem like a simple request: to use the boy’s restroom while at school.” Although Ash’s birth certificate identities him as female, he has openly identified as male since his freshman year. In addition to publicly transitioning, Ash was diagnosed with Gender Dysphoria, began hormone replacement therapy and legally changed his name.
Conflict with the School District
However, when Ash requested that he be permitted to use the boys’ restrooms while at school and school-sponsored events, the school district refused. Per the school district’s unwritten policy, Ash could only use the girls’ restrooms or a gender-neutral restroom in the school’s main office, which wa squite a distance from his classes. This distressed Ash, who feared this arrangement would both undermine his transition and draw more attention to his transgender status. As a result, he attempted to avoid using the restroom in school by restricting his water intake, putting him at risk of physical harm. Indeed, because of a preexisting health problem he suffered from dizziness and fainting, as well as stress-migraines, depression, and anxiety. Faced with “what he perceived to be the impossible choice between living as a boy or using the restroom,” he began considering suicide.
When Ash began his junior year in the fall of 2015, he decided to disobey the school district’s instructions and for six months exclusively used the boys’ restrooms at school without incident. In February 2016, a teacher saw him washing his hands in the boys’ restroom and reported it to the administration. The school district repeated its earlier decision and informed Ash he could not use the boys’ restroom. Despite efforts to convince them, including letters from Ash’s pediatrician, the administration was unmoved. Instead, the school stated Ash would need to complete a surgical transition (a procedure prohibited for someone under 18 years old) to be permitted to use the boys’ restroom.
Ash disobeyed the school’s orders and continued using the boys’ restroom for the rest of his junior year, despite increased surveillance and discipline from the school. The school district provided him a key to two locked, single-user, gender-neutral restrooms on the opposite side of campus from his classes. Again, Ash considered this unacceptable because it would draw attention to his restroom use and transgender status.
In July 2016, Ash filed suit against the school district, alleging the treatment he received violated both Title IX and the Equal Protection Clause of the Fourteenth Amendment. The District Court granted Ashton’s motion for a preliminary injunction, which prevented the school district from denying him access to the boys’ restroom; from enforcing any policy preventing him from using the restroom of his choice; from disciplining him for using the boys’ restroom, and from monitoring or surveilling his restroom use in any way. The school district appealed this ruling to the Seventh Circuit Court of Appeals.
The Seventh Circuit refused to reconsider the District Court’s denial of the school district’s motion to dismiss and affirmed its grant of Ash’s preliminary injunction.
Title IX Claim
The Seventh Circuit reviewed Title VII case law to interpret Ash’s Title IX claims. In particular, the court focused on two Supreme Court cases, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In Price Waterhouse, the Court embraced a broad view of Title VII, holding that Congress “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Oncale took a similarly expansive position, holding that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The Seventh Circuit reasoned that, “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth,” and therefore rejected the school district’s argument that Congress’s failure to include transgender status as a protected class was determinative. Congressional inaction, it reasoned, lacks any real persuasive significance and lends itself to multiple conflicting inferences.
The court concluded that Ash demonstrated a likelihood of success on the merits of his Title IX claim. It declared that “[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 non-conformance, which in turn violates Title IX.” It went on to reject the school district’s contention that it discharged its legal duty by providing gender-neutral alternatives. Such accommodations, the court reasoned, did not relieve the school district from liability because it is the policy itself that violates Title IX. Furthermore, the court did not consider the gender neutral bathrooms offered by the school to be true alternatives because of their distant location from Ash’s classes and the increased stigmatization they caused him. The court similarly rejected the school district’s argument that Ash had “unilaterally declare[d]” his gender, noting that such an argument misrepresents Ash’s claims and his transgender status. The court noted, “since his diagnosis, he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain.”
Equal Protection Claim
The Seventh Circuit further held that Ash had demonstrated a likelihood of success on his Equal Protection claim as well. The court applied a standard of heightened scrutiny to the school’s restroom policy, rejecting the school district’s argument that the more lenient rational basis test should apply, considering this a clear sex-based classification. The court declared that “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. This policy is inherently based upon a sex-classification and heightened review applies.” It saw the school district’s policy as motivated by gender stereotypes, reasoning that it treats transgender students, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, like Ash, differently on this basis.
The school district argued the mere presence of a transgender student in the bathroom infringes upon the privacy rights of other students with whom he or she does not share biological anatomy. The court thoroughly rejected these claims as “based upon sheer conjecture and abstraction.” It noted that Ash used the boys’ bathroom for nearly six months without a single complaint from another student, and that the school district only found out because a teacher reported it. It went on to reason that a transgender student’s presence in the restroom constituted no more threat to other students’ privacy than any other student who happened to be in the bathroom at the same time. Finally, the court considered the school district’s reliance on a birth certificate’s sex-marker to demonstrate the policy’s arbitrary nature, further weakening any justifications for its sex-based classifications.
In March, the Court remanded Gloucester County School Board v. G.G. after the Trump Administration rescinded Obama-era guidance expanding the interpretation of Title IX to transgender students. On remand, the Fourth Circuit lifted the injunction that permitted the transgender student to use the bathroom that matched his gender identity.
The Seventh Circuit’s decision rests entirely on case law – including the Seventh Circuit’s recent opinion in Hiveley v. Ivy Tech. Community College – rather than administrative guidance, to find that transgender students are covered by Title IX’s protections. Extending the Seventh Circuit’s reasoning, these rights would also extend to transgender employees covered by Title VII.
The Seventh Circuit decision creates a circuit split that will likely be addressed by the Supreme Court in the coming years.
Until the circuit split is decided, this case has potentially major implications for employers, as well as schools, colleges and universities. Careful attention should be paid to the Seventh Circuit’s ruling when drafting policies and considering accommodations for transgender individuals.
The Seventh Circuit seemed to be influenced by the school district’s lack of any written policy on transgender students or restroom use in general. The absence of a written policy or any explanation for its decision perhaps convinced the court that the school district’s justifications were pretextual. The court also noted that the issue only arose after a teacher – rather than a student – notified the school that Ash was using the boys’ restroom. After this notification, there was a significant delay, during which time Ash was permitted to use the boys’ restroom without incident.
The Seventh Circuit squarely dismissed generalized privacy concerns as insufficient to justify such bathroom policies. In addition, the court called into question the legality of gender-neutral bathrooms as an acceptable accommodation for transgender individuals, as these bathrooms necessarily treat transgender individuals differently on the basis of their sex. It is unclear, however, how much the facts of this case influenced this part of the decision (i.e. the distance Ash had to travel to get to his classes). It is possible that these portions of the Seventh Circuit’s decision will have significant implications for the way in which employers, schools, colleges and universities seek to accommodate transgender individuals – as “separate” may no longer be considered “equal.”
Additionally, employers, schools, colleges and universities should pay close attention to the Seventh Circuit’s use of pronouns and preferred names used to refer to transgender individuals. The court went to great lengths to refer to Ash by his preferred name of “Ash,” rather than the more traditional Whitaker. Allegations of “misgendering” are often highlighted in investigations and lawsuits filed by the EEOC against private employers.
The key to successfully addressing many of these issues includes sensitivity training on LGBTQ issues, working collaboratively to prepare a gender transition plan and establishing clear guidelines and an open dialogue between transgender and cisgender individuals to anticipate and respond to any concerns to ensure all individuals feel safe and respected in their educational or work environments.