(Another) Transgender Update

The law surrounding transgender student’s rights in regards to restroom access still lacks definitive answers.  The Trump Administration withdrew the previous Obama Administration guidance, and for the most part the issues have remained out of the news...until recently.  On May 30, the Seventh Circuit decided one of the many cases making their way through the court system.  Nebraska is in the Eighth Circuit so the case has no direct control over Nebraska schools.  However, the decision is worth discussing because now the case is only one step away from the Supreme Court.

The Case.  The case is Whitaker v. Kenosha Unified Sch. Dist., No. 2:16-cv-00943-PP, 2017 U.S. App. LEXIS 9362 (7th Cir. May 30, 2017).  Ashton Whitaker is a 17-year old student who is biologically female but identifies as male. The school district maintained that Ashton could utilize either the girl’s restroom or a gender-neutral restroom across campus to which Ashton alone had access.  Ashton sued the school alleging that the district’s unwritten bathroom policy violates Title IX’s prohibition against sex discrimination and the Equal Protection Clause of the Fourteenth Amendment. 

Ashton requested a “preliminary injunction” order from the court.  A preliminary injunction is an initial step in a lawsuit which asks the court to direct the defendant (here, the school) to stop a certain action based on the likelihood that the plaintiff (here, the student) would win a lawsuit.  In this case, the injunction would grant Ashton access to the boy’s restroom for the 2017-18 school year.  The district court granted Ashton this order, demanding that the school district provide Ashton access to the boy’s restrooms.  The school district then appealed that decision.  The Seventh Circuit Court of Appeals affirmed the decision on appeal.

In analyzing Ashton’s request for an injunction, the court was highly critical of the unwritten policy the school maintained on transgender restroom use.  The school told Ashton and his mother that under school policy students were restricted to using the restroom that corresponds with the sex listed on the student’s birth certificate.  Ashton asserted this policy violated Title IX and the Equal Protection Clause.

The court looked to case law on Title VII (preventing employment discrimination) to interpret Title IX as prohibiting sex-based discrimination under a sex stereotyping theory.  This means that according to the Seventh Circuit, Title VII and IX protect transgender individuals from discrimination related to their non-conformity to the gender stereotypes of their birth sex.  By extension the court reasoned, “[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.”  Id. at *30-31.  The court further asserted, “[p]roviding a gender-neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Id.

The court also concluded the policy the school district maintained was likely a violation of the Equal Protection Clause of the Fourteenth Amendment.  This was based on the fact that transgender students were not treated in a manner similar to their peers; instead they were excluded from using the restroom of their choice, and effectively punished for using the “incorrect” restroom.  The sex-based nature of the distinction drawn by the school district could not withstand scrutiny, as the school district failed to demonstrate that the policy served a rational purpose.

Further, the district’s insistence on utilizing the sex referred to by the student’s birth certificate was determined to affect students disparately, as states differ in requirements for a birth certificate sex change.  For instance, some students with birth certificates from states other than Wisconsin would be able to change the sex on their birth certificate with a doctor’s note;  while students with a Wisconsin birth certificate could only change their birth certificate sex after gender reassignment surgery, a procedure prohibited for minors in Wisconsin.  As such, the court held the policy did not afford equal protection to all students, as the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.”

Notably, throughout the decision the court referenced the unwavering nature of Ashton’s transgender status.  “This is not a case where a student has merely announced that he is a different gender.  Rather, Ash has a medically diagnosed and documented condition.  Since his diagnosis, he has consistently lived in accordance with his gender identity.”  Id.  This factor weighed heavily in Ashton’s favor. 

Conclusion.  Advocates for transgender students will undoubtedly point to this decision in an attempt to persuade schools regarding their required accommodations for transgender students.  We have long advised schools that it is best to accommodate student needs and requests on a case-by-case basis.  After all, an individualized needs assessment is a core requirement of Title IX.  As this case demonstrates, even an unwritten, verbal policy can be the basis of litigation.

This case represents the first time a major federal Court of Appeals has used the “gender norms” or “gender stereotype” cases (like Price Waterhouse) to determine that transgender students are discriminated against “on the basis of sex” when they are denied access to the facilities of their choice.  This was one of the main positions underlying the Obama Administration guidance. Because this case bolsters the prior administration’s position, we will have to wait and see whether this case will have an impact on civil rights enforcement actions such as those brought through the OCR.  Interestingly, the Trump Administration recently announced major funding cuts for enforcement agencies like the Office for Civil Rights (OCR)

We will continue to keep you updated on this case and others as we approach the 2017-18 school year.  In the meantime, if you have any questions we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.