June 22, 2017, Trial News
Seventh Circuit expands protection of transgender students
Diane M. Zhang
The Seventh Circuit has ruled that a Wisconsin school district violated the rights of a transgender student, Ashton Whitaker, under Title IX and the Equal Protection Clause when it refused to let him use the boys’ bathroom. In a significant ruling that could impact the rights of transgender students nationwide, the court held that Ashton had demonstrated a sufficient likelihood of success on the merits of his claims.
The Seventh Circuit has ruled that a Wisconsin school district violated the rights of a transgender student, Ashton Whitaker, under Title IX and the Equal Protection Clause when it refused to let him use the boys’ bathroom. (Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 2017 WL 2331751 (7th Cir. May 30, 2017).)
In a significant ruling that could impact the rights of transgender students nationwide, the court held that Ashton had demonstrated a sufficient likelihood of success on the merits under both Title IX of the Education Amendments of 1972 and the Equal Protection Clause. Discrimination based on an individual’s transgender status falls within the ambit of Title IX’s prohibition of sex discrimination, it held, and the school district’s sex-based classification in prohibiting Ashton from using the boys’ bathroom does not pass the heightened scrutiny test required under the Fourteenth Amendment.
Ashton Whitaker’s birth certificate designates him as “female,” but he does not identify as such. In the 2013-2014 school year, he began to publicly transition. He cut his hair, began to use the name Ashton, and asked his teachers and classmates to refer to him as Ashton and to identify him as a boy. He also began to see a therapist, who diagnosed him with gender dysphoria. In 2016, Ashton began hormone replacement therapy and legally changed his name. In his sophomore year, he asked to be permitted to use the boys’ restrooms while at school.
The school administration denied his request, telling Ashton that he could use only the girl’s restroom or a gender-neutral restroom in the school’s main office, which was far away from his classes. As a result, Ashton restricted his water intake to avoid having to use the bathroom. This worsened an existing medical issue—Ashton has been diagnosed with vasovagal syncope, which makes him prone to fainting or seizures if he is dehydrated. Due to his worsened symptoms from dehydration and the stress from being denied use of the boys’ bathroom, Ashton began to contemplate suicide.
The next school year, Ashton began to use the boys’ bathroom despite the school’s stance. He did so for several months without incident, until a teacher noticed and reported him. Despite letters from Ashton’s pediatrician identifying him as a transgender boy and a letter from Ashton’s counsel requesting that the school permit him to use the boys’ restrooms, the school district refused—reiterating that he could use either the girls’ restroom or a gender-neutral restroom.
Attorney Ilona Turner of the Transgender Law Center in Oakland, Calif., who represented Ashton, explained that this was not the only example of discriminatory treatment from the school.
“Ever since Ash transitioned at the beginning of his sophomore year of high school, his peers have been supportive and treated him as the boy that he is. School administrators, however, refused to respect who he is and began a persistent campaign of harassment against him. Among other things, administrators called him by his old name and female pronouns; told him he could only be a candidate for prom queen, not prom king; required him to room alone on an overnight trip instead of in a suite with other students; directed school security guards to monitor his restroom use; and proposed a policy to require transgender students to wear green wristbands to make them easier for school staff to identify.”
In 2016, Ashton filed a lawsuit alleging violations of Title IX and the Equal Protection Clause. In a motion for preliminary injunction, Ashton sought to enjoin enforcement of the school district’s bathroom policy. The school district responded by filing a motion to dismiss and opposing the preliminary injunction. The district court denied the school’s motion to dismiss and granted Ashton’s preliminary injunction in part, enjoining the school from denying him access to the boys’ bathroom, enforcing any policy against Ashton that would prevent him from using the boys’ bathroom, disciplining him for doing so, or monitoring his bathroom use.
The school district appealed, arguing that the Seventh Circuit should exercise pendent jurisdiction and that the district court erred in granting Ashton’s motion. The Seventh Circuit declined to exercise pendent jurisdiction, noting that it was a controversial and narrow doctrine that was not applicable in this case merely because the district court had referenced its decision to deny the school district’s motion to dismiss in determining that Ashton had sufficiently demonstrated a likelihood of success on the merits.
The Seventh Circuit also ruled that preliminary injunctive relief was proper. Those seeking a preliminary injunction must show that they will suffer irreparable harm absent the relief; that inadequate remedies at law exist; and that they have a reasonable likelihood of success on the merits. Then, the court engages in a balancing analysis to determine whether the balance of harm favors the moving party.
Citing Ashton’s depression and suicidal thoughts as irreparable harms, the court noted that a monetary award would have been inadequate to compensate for these harms. Turning to Ashton’s reasonable likelihood of success on the merits, the court evaluated his claims under Title IX and the Equal Protection Clause.
Addressing the parties’ dispute over how the term “sex” should be interpreted under Title IX, the Seventh Circuit acknowledged that courts have looked to Title VII when construing Title IX. Because the U.S. Supreme Court had “embraced an expansive view of Title VII”—recognizing a cause of action where an employee suffered discrimination for not conforming to sex stereotypes—the Seventh Circuit held that discrimination against Ashton for being transgender fell within the ambit of sex discrimination. “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth,” the court pointed out. And although Congress had not explicitly added transgender status as a protected characteristic to either Title VII or Title IX, congressional inaction was not determinative.
As to the equal protection claim, the court used the heightened scrutiny test because, as it had noted, discriminating against Ashton was sex-based discrimination, which triggers a higher constitutional hurdle. The Seventh Circuit declined to opine on whether transgender status itself triggers higher scrutiny. Rather, the court said, the sex discrimination that Ashton had suffered was itself sufficient to trigger heightened scrutiny: “The School District treats transgender students like Ash, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, differently.”
Turner emphasized the importance of the court’s decision on this issue, citing to a Fourth Circuit decision last year in a similar case, Gavin Grimm v. Gloucester County School Board, (822 F.3d 709 (Apr. 19, 2016)). “The Fourth Circuit’s decision had relied on Title IX guidance issued by the Obama administration to find that the school district violated Title IX by excluding Gavin from boys’ restrooms at his Virginia high school. After the Trump administration withdrew that guidance in February, the Supreme Court directed the Fourth Circuit to take another look at the case. The Seventh Circuit’s decision in Whitaker is groundbreaking because it is the first federal court of appeals to rule that—even absent guidance from the federal government—prohibiting a transgender boy from using the boys’ restroom violates Title IX, as well as the Equal Protection Clause.”
She added: “This decision will likely be viewed as persuasive precedent when the Fourth Circuit reconsiders Gavin’s case in the fall.”
Finally, in balancing the harms, the Seventh Circuit concluded that the district court did not err in its ruling. Citing the school’s concerns over privacy, the court pointed out that “frequently-raised and hypothetical concerns about a policy that permits a student to utilize a bathroom consistent with his or her gender identity have simply not materialized.” Noting that Ashton had used the boys’ bathroom for several months without incident, and citing the irreparable harms Ashton has and will suffer if he is not permitted to use the boys’ bathroom, the Seventh Circuit affirmed the lower court’s grant of a preliminary injunction.
Turner said other courts have followed similar reasoning in using heightened scrutiny to analyze discriminatory policies against transgender people.
“A number of courts in recent years have ruled that discrimination against transgender people should receive heightened scrutiny under the Equal Protection Clause,” she said. “The Sixth Circuit and Eleventh Circuit, among others, have held that discrimination against transgender people should get intermediate scrutiny because it is a form of sex discrimination. Other courts have also recognized that transgender people as a class independently qualify for heightened scrutiny due to the history of discrimination against the group and other factors.”