Transgender Student Presented Sufficient Evidence Of Harm Resulting From The District’s Bathroom Policy; U.S. Supreme Court Declines To Hear The Case

The United States Supreme Court has declined to hear an appeal by a Wisconsin school district involving a transgender student’s request for an injunction to be allowed to use the boys’ restroom after starting his female-to-male transition.  The student sued the school district, arguing that the district’s unwritten policy prohibiting his use of the boys’ restroom violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. The trial court granted the student an injunction entitling him to use the restroom compatible with his gender identity and the school district appealed.

On appeal, the Seventh Circuit Court of Appeals held that the transgender student sufficiently demonstrated that he was likely to suffer irreparable harm in absence of the injunction.  A psychologist testified that the school district’s actions, including its bathroom policy, which identified the student as transgender and therefore, “different,” were directly causing significant psychological distress and placed the student at risk for experiencing life-long diminished well-being and life-functioning.

In addition, the student’s use of single-user restrooms, as requested by school district, invited more scrutiny and attention from his peers.  Evidence showed that other students inquired why he had access to the restrooms and asked intrusive questions about his transition, which further intensified his depression and anxiety surrounding the school district’s policy.  According to the appeals court, the student’s decision to seek injunctive relief over the summer rather than initiate an administrative complaint did not undermine his argument that the policy was inflicting, and would continue to inflict, irreparable harm.  The Seventh Circuit upheld the trial court injunction and the district appealed. However, the U.S. Supreme Court has declined to take up the case, thus, leaving in place the injunction.

Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), cert. dismissed sub nom. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker ex rel. Whitaker, No. 17-301, 2018 WL 1147062 (U.S. Mar. 5, 2018)

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