July 01, 2017

School District Must Allow Transgender Student to Use Bathroom of Identified Gender

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Whitaker v. Kenosha Unified School District, 2017 WL 2331751 (7th Cir.).

The Seventh Circuit confirmed a lower court’s preliminary injunction after concluding a transgender student who had been denied use of the boys’ restroom was likely to suffer irreparable harm without the preliminary injunction and was likely to succeed on a Title IX sex discrimination claim and an equal protection violation. The court determined the student would likely succeed on the Title IX sex discrimination claim based on a theory of sex-stereotyping. The court also determined heightened scrutiny, not rational basis, would apply to the student’s equal protection claim. 

Ash, a senior in the Kenosha Unified School District, has a birth certificate designating him as female. However, Ash began openly identifying as a boy his freshman year of high school. His sophomore year he told his teachers and classmates to refer to him as Ash/Ashton and to use male pronouns. Ash also began seeing a therapist who diagnosed him with gender dysphoria and he began hormone replacement therapy. During his sophomore year Ash asked to use the boys’ restroom and was told he could only use the girls’ restroom or a gender-neutral restroom in the school’s main office, to which only he would have access. His junior year, after using the boys’ restroom for six months without incident, Ash was the only student required to use gender-neutral restrooms located on the opposite side of campus from his classrooms. 

Ash felt these bathroom restrictions undermined his transition. The restrictions also caused him anxiety and fear of punishment if he used the boys’ restroom; therefore, Ash restricted his water intake to avoid using the restroom. This plan was problematic because he had been diagnosed with vasovagal syncope requiring him to drink six to seven bottles of water a day to avoid dehydration, resulting in fainting and/or seizures. Ash suffered from migraines, anxiety, depression, suicidal ideation, and fainting due to the restroom issue. 

Ash met with the school several times to resolve the issue. He was told that in order to use the boys’ restroom his gender in the school’s official records needed to be changed by providing unspecified legal or medical documentation. Ash submitted two letters from doctors documenting his gender dysphoria. The school then required Ash to have proof of surgical transition, which is prohibited for someone under 18 years old. The school district never provided Ash with written details about the bathroom policy. 

 During the summer between his junior and senior year Ash filed a complaint alleging the treatment he had received violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. The district court enjoined the school district from denying Ash access to the boys’ restroom, enforcing a policy preventing his restroom use, disciplining Ash for his restroom use, or monitoring his restroom use. The school district appealed. 

The U.S. Court of Appeals for the Seventh Circuit upheld the preliminary injunction after applying a two-part test. First, Ash was required to show he would suffer irreparable harm, he had inadequate remedies at law, and his case had a reasonable likelihood of success on the merits. Second, the court had to balance Ash’s harms with the harms of the school district or public. 

The court found Ash demonstrated irreparable harm and would have no adequate remedies at law. Harm is considered irreparable if it “cannot be prevented or fully rectified by the final judgment after trial.” Experts testified Ash’s use of the boys’ restroom was integral to his transition and emotional well-being and the school district’s actions directly caused significant psychological distress, placing him at risk for life-long diminished well-being and life-functioning. This life-long distress and diminished well-being also demonstrated a monetary remedy would not be adequate. 

The Seventh Circuit held Ash would likely succeed on a Title IX claim based on a sex-stereotyping theory. The court likened the claim to the U.S. Supreme Court Title VII decision in Price Waterhouse v. Hopkins (490 U.S. 228 1989). In that case, the Supreme Court found an employer had violated Title VII after discriminating against a female employee for being too masculine. The Court interpreted Title VII broadly to mean Congress “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” The Seventh Circuit extended this logic to school districts and said a policy requiring someone to use a bathroom that does not conform with their gender identity punished them for their gender nonconformance, violating Title IX. 

The court determined heightened scrutiny applies to Ash’s equal protection claim because the school district made a sex-based classification that treats transgender students differently. Therefore, the school district had to have a justification that was “exceedingly persuasive” serving important governmental objectives and discriminatory action substantially related to achieving those objectives. This justification could not be based on overbroad generalizations about sex or sex-based stereotypes. 

The school district argued it needed to protect the privacy rights of all students because the presence of a transgender student in the bathroom infringed on the privacy rights of other students who did not share biological anatomy. The Seventh Circuit disagreed because it was based on “sheer conjecture and abstraction.” The court noted Ash had used the bathroom for six months without incident and likened a transgender student’s presence in the bathroom to being no different than an overly curious student of the same biological sex or pre-/post-pubescent children who differ anatomically.

After determining Ash would succeed on the merits, demonstrated irreparable harm, and had no adequate remedy at law, the Seventh Circuit then had to balance Ash’s harms with the possibility of harm to the school district or public as a whole. The school district argued the harm impacted all 22,160 students in the district. The court found the harm was speculative because Ash used the boys’ bathroom without incident for six months and no students had complained.