By James Petrungaro & John Fester


June 2, 2017 

            The federal appeals court having jurisdiction over Illinois schools released a unanimous decision by a three-judge panel this week that sends a strong message to school districts about how they should respond to transgender student bathroom access requests. In Whitaker v. Kenosha Unified School District No 1 Board of Education, the Seventh Circuit Court of Appeals ruled in favor of a student’s request for the issuance of a preliminary injunction, requiring the District to allow the transgender male student to use the boys’ restroom, pending a full review of the case at a later date. 

            At issue in the case is the school district’s decision (which the Court referred to as a “policy” despite the absence of a formal written policy on the issue), to deny the transgender male student access to the boys’ restroom. The school district told the student and his parent that it would allow the access only if the student could provide unspecified “legal” and “medical” certifications of being a boy, including proof of having undergone a complete surgical transition (which is not legally allowed for minors).  

         Background.    A basic understanding of the facts of the case are necessary to understand the Court’s decision. As of the ruling, the student was a 17-year old senior named “Ash” who was on the verge of graduation. During his freshman year of high school, Ash began to openly identify as a male, though he was born anatomically female. As a sophomore, he asked that teachers address him as a male. As part of his public transitioning to being a male, he saw a therapist and was diagnosed with Gender Dysphoria and in the summer before his senior year, began hormone replacement therapy. His public transitioning was largely without hostility or disruption and the record indicates that he was generally accepted by his high school community. 

            Toward the end of his sophomore year, Ash asked his school counselor for permission to use the boys’ restroom. The school district denied this request and assigned him to a gender-neutral restroom in the school’s main office, where he was the only student allowed to use that restroom. Ash initially reacted by restricting the intake of liquids to lessen his need to use the restroom and to combat the attention he thought would be drawn to the situation. But that approach aggravated a medical condition, which subjected him to an increased risk of fainting and seizures. During his junior year, Ash was also provided access to two other gender neutral and single-user restrooms. However, Ash used the boys’ restroom, notably without any incidents, disruptions or complaints to the district’s administration, until one day a teacher observed him and reported him to the administration. During the remainder of his junior year, Ash continued to use the boys’ restroom and was counseled several times about violating the District’s directives. 

        Heading into his senior year, Ash filed a federal lawsuit and requested a preliminary injunction to halt the school district’s “policy” prohibiting his use of the boys’ restroom. Ash alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment. For his Title IX claim, Ash argued that he was being unjustifiably discriminated against based upon the basis of his “sex.” For the Equal Protection claim, Ash argued that as a transgendered person, he is a member of a protected classification of individuals and his denial of equal access to the boys restroom was not justified by the school district. 

         In granting Ash’s preliminary injunction, the Court made quick work of finding that the school district’s policy decision subjected Ash to irreparable harm (a mix of physical and emotional injuries) and that Ash lacked other adequate remedies – both prerequisites of an injunction. The bulk of the Court’s analysis turned on whether Ash had viable claims under Title IX of the Civil Rights act of 1964 or the Equal Protection Clause of the U.S. Constitution. 

        Title IX.           The ultimate question in the Title IX claim was whether Congress intended to include transgender students in the statute’s protections against “sex” discrimination. The U.S. Supreme Court has not decided that question, leaving the Seventh Circuit to look to its own precedent and that of other circuits. Recognizing the lack of precedent in the student context and Title IX, the Court relied on its decisions in the employment context under Title VII.  

      First, the Seventh Circuit recognized that in 1984, it ruled in a transgender employment discrimination case that the definition of “sex” should be “given a narrow, traditional interpretation, which would…exclude transsexuals.” But the Court then acknowledged that the U.S. Supreme Court has held that Title VII does protect against “sex stereotyping,” including workplace policies that require employees to conform to certain standards of femininity or masculinity (e.g., sex-based dress codes). This is where the Court’s decision marked a sharp turn in transgender jurisprudence. Under a definition of “sex” that includes “sex stereotyping,” the Court ruled that Title IX does protect against discrimination of transgendered students, stating: “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”  

        Equal Protection.        The Court then turned its attention to the Equal Protection claim and centered its analysis on whether the restroom decision was an intentional or arbitrary discriminatory decision by the school district. In an equal protection analysis, courts must first determine whether the discriminatory act affected a “protected class.” If so, the judicial scrutiny of the decision becomes elevated and less deference is given to the policymaker. Here, the Court held that the school’s decision was in fact based on “sex,” thus prompting “heightened scrutiny.” Under a “heightened scrutiny” standard, precedent requires the school district to prove that its policy is both “genuine” and “exceedingly persuasive” (as opposed to the lesser standard of merely being “rational”). At every turn, the Court rejected the school district’s claimed justifications, finding:  

  • The district does not treat all boys and girls the same with its segregated restroom policy (as claimed by the school district) because it treated Ash differently than any other student by assigning him to single-user facilities;

  • All privacy arguments raised by the school district for the other students sharing the restroom with Ash were unfounded conjecture (there were no complaints or protests from students);

  • Identifying an individual’s “sex” is not a black and white exercise that can be determined even by reliance on a birth certificate since that marker “does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.”

  • Restrooms in general are not a purely private place and any student wanting privacy can use a stall.

Notably, the Court wrote:  

A transgender student’s presence in the restroom provides no more of a risk to other student’s privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or classmates… [I]f the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically.  

         Impact on Legal Landscape.   It is first noteworthy that the posture of the case makes the Court’s decision technically less authoritative. The decision is “preliminary” and is officially just a prediction by the Court of how it will rule when the case runs its full course. The Kenosha School District will be given an opportunity put on a more exhaustive factual demonstration to persuade the Court to decide differently before it issues a final decision on the underlying merits. If the parties presented a fairly complete factual record at the time of the preliminary injunction hearing, however, the Court’s decision can reasonably be expected to stand. The practical effect of the decision cannot be understated, however. The Court’s reasoning on the rudimentary “legal” questions of whether transgender students are entitled to the legal protections of Title IX and the Equal Protection Clause are not expected to change absent reversal by the U.S. Supreme Court. Therefore, if a school district denies a transgender student use of the bathroom associated with his or her gender identity, or requires use of a single-occupancy bathroom, this case will almost certainly be followed by federal district judges should the student seek legal relief. School districts can expect transgender advocacy groups to widely publicize this decision, so you may see an increase in bathroom requests from transgender students, or an increase in transgender students no longer “asking” for what may now be considered a right. 

            This case is different than the Fourth Circuit’s decision in Grimm v. Gloucester County School Board. In Grimm, the Fourth Circuit’s transgender-friendly decision was largely rooted in administrative guidance issued by the U.S. Department of Education’s Office of Civil Rights (OCR) under the Obama Administration. After that case worked its way to the U.S. Supreme Court, OCR (then under the Trump Administration) rescinded its guidance and the U.S. Supreme Court remanded the case back down for further proceedings. This Seventh Circuit decision, however, does not rely on OCR’s position – in fact it makes no mention of OCR or the Grimm case at all.   

            The transgender student access issue is a politically charged and emotional matter that only in the last few years has come to the forefront of the school law landscape. Unless and until the Seventh Circuit reverses itself or is reversed by the U.S. Supreme Court, its decision can practically be treated as controlling for school districts in Illinois, Indiana and Wisconsin. Scariano, Himes and Petrarca is prepared to assist you in reviewing your transgender student practices and procedures in light of this significant decision.