The Seventh Circuit Court of Appeals in Chicago issued a decision siding with a transgender student who filed suit over using the boys’ bathroom at school.   Ashton Whitaker, a high school senior, is a transgender male who asked to use the boys’ restroom at school.  The District, however, denied the request because it believed that Ashton’s mere presence would invade the privacy rights of his male classmates.  The suit was brought under Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause.  The student also asked for an injunction, claiming that the denial of access to the restroom was causing him harm, because having to avoid the restroom exacerbated a medical condition that rendered him susceptible to fainting and/or seizures.  He also claimed it caused him educational and emotional harm, including suicidal ideations.  The trial court denied the District’s motion to dismiss and granted an injunction allowing him to use the boys’ restroom.  The District appealed.

On appeal, the District requested that the Court of Appeals reverse the trial court’s decision to grant the injunction, arguing that transgender students are not protected under Title IX and that the District can overcome the Fourteenth Amendment claim because it has a rational basis to support the bathroom policy – the need to protect other students’ privacy.  The District also argued that the harms to the student were outweighed by the harms to the student population and their privacy interests.

The Court of Appeals rejected the District’s arguments.  According to the appeals court, 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.”  The policy also subjects transgender students to different rules, sanctions, and treatment than non-transgender students, in violation of Title IX.  The District’s gender neutral alternatives also violated Title IX, according to the court of appeals, because of their distant location to Ashton’s classrooms and the increased stigmatization they caused.

The 7th Circuit also upheld the ruling in favor of the student on his Equal Protection claim.  The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike” and protects against intentional and arbitrary discrimination.  Generally, state action will be upheld if the classification drawn is rationally related to a legitimate state interest.  However, according to the Court, the rational basis test does not apply when a classification is based upon sex.  Instead, sex-based classifications are subject to a heightened scrutiny requiring a showing that the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

The court of appeals observed that, because the District’s bathroom policy could not be stated without referencing sex, the policy was inherently based upon a sex-classification and, therefore, heightened review applied.  The policy also treated transgender students, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, differently.  These students are subject to discipline if they violate the bathroom policy.  The District did not demonstrate a valid privacy interest, aside from “sheer conjecture and abstraction,” according to the Court.  In fact, there was no evidence that the District received any student complaints about Ashton’s use of the boys’ restroom.  Ultimately, the Court held that a “transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions…. Nothing in the record suggests that the bathrooms at Tremper High School are particularly susceptible to an intrusion upon an individual’s privacy.”  Because the District failed to demonstrate genuine privacy concerns or harm to the student population, the 7th Circuit upheld the injunction allowing the student to use the boys’ restroom.  The 7th Circuit has no jurisdiction over Texas and, therefore, this decision is not binding on school districts in Texas.  However, this case may demonstrate a trend that other Courts may follow in similar cases brought by transgender students.   The case is Whitaker v. Kenosha Unified School District, Dkt. No. 16-3522 (7th Circuit May 30, 2017).

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