On Tuesday, May 30, 2017, the United States Court of Appeals for the Seventh Circuit affirmed a district court order granting a preliminary injunction issued to permit a transgender student’s access to the boys’ restroom in accordance with his gender identity. The decision comes less than three months after the Supreme Court declined to opine on the issue in Gloucester County School Board v. G.G., 137 U.S. 1239 (2017).
In 2016, transgender rights received national attention when the Fourth Circuit decided G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016). The plaintiff in Gloucester was a transgender boy who sought to use the boys’ restroom. When the district court dismissed and denied his claims, the student appealed. The Fourth Circuit Appellate Court reversed the district court’s dismissal of the student’s claim under Title IX of the Education Amendments Act of 1972 (“Title IX”) and vacated the district court’s denial of the student’s motion for a preliminary injunction to use the boys’ restroom, remanding the case back to the district court for further consideration. In support of its decision, the Fourth Circuit noted that because Title IX is silent on the rights of transgender students, courts should defer to the Department of Education’s interpretation of its application in the education context.
At the time of the decision, guidelines issued by the Department of Education in conjunction with the Department of Justice (“Departments”) provided that Title IX protects the rights of transgender students to use school bathrooms and locker rooms that align with their gender identity.
While emphasizing its necessary deference to guidance provided by the Departments, the Fourth Circuit Court acknowledged that “a subsequent administration [may] choose to implement a different policy. . .”
On February 22, 2017, under the supervision of the newly inaugurated administration, the Departments rescinded its previous guidance. In its rescission letter, the Departments explained that the previous guidance documents “did not contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
Shortly after, the Supreme Court vacated the Fourth Circuit’s judgment in Gloucester and ordered the court to further consider the matter in light of the guidance issued by the new administration. The Fourth Circuit subsequently vacated the preliminary injunction.
An Alternative Approach in the Seventh Circuit
On May 30, 2017, in Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit affirmed a preliminary injunction granted on behalf of a transgender high school student, permitting the plaintiff, a transgender boy (“Ash”), to use the boys’ restroom in accordance with his gender identity. In its decision, the court held that the school district’s unwritten policy violated Title IX and the Equal Protection Clause of the 14th Amendment.
Although his birth certificate designates him as female, Ash began to openly identify as a boy prior to entering high school. When school administrators learned of Ash’s continued use of the boys’ restroom, Ash was informed that he was only permitted to use the girls’ restrooms or the gender-neutral restroom located in the school’s main office.
Title IX Claim
In addressing Ash’s Title IX claim, the Seventh Circuit joined the Sixth and Eleventh circuits by recognizing the applicability of a “Sex-Stereotyping” theory to Title IX claims involving transgender plaintiffs. Although originally applied in employment discrimination cases under Title VII of the Civil Rights Act of 1964, this theory permits a cause of action when an adverse action is taken because of an individual’s failure to conform to sex stereotypes.
According to the court, “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” Consequently, the court ultimately determined that “[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.”
Equal Protection Claim
Next, the Whitaker court addressed plaintiff’s claim that the unwritten bathroom policy discriminated against him under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In short, the Equal Protection Clause requires state bodies to treat all similarly situated individuals the same. Generally, an action by a state body, such as a school, will be upheld under the Equal Protection Clause if the classification created by the statute or ordinance is “rationally related” to a legitimate state interest. This is often referred to as rational basis scrutiny.
However, because the court determined that the policy created a sex-based classification, it warranted “heightened scrutiny.” As a result, the burden was placed on the school district to demonstrate that its justification for the bathroom policy was exceedingly persuasive. The school district argued that this policy was justified because it needed to protect the privacy rights of all 22,160 students. Although the court recognized the legitimacy of the privacy rights of the other students, it stated that this interest must be weighed against the facts of the case.
Noting the speculative nature of the school district’s privacy concerns, the court highlighted several factors that worked in Ash’s favor. For nearly six months, Ash used the boys’ restroom without incident or complaint from other students. The issue was only brought to the district’s attention after a teacher witnessed Ash washing his hands in the boys’ restroom. Although complaints of Ash’s restroom use were raised by community members at a school board meeting, no evidence of complaints from students was ever produced. The school district was unable to demonstrate that it would suffer any harm by complying with the preliminary injunction and allowing Ash to use the boys’ restroom.
As the most recent development in a nationwide debate, the Seventh Circuit’s unanimous decision in Whitaker has intensified conversations surrounding the rights of transgender students in public schools. The lack of uniformity existing across the circuits paired with legislative attempts to enact a solution signify an unsettled area of the law. Absent a definitive pronouncement from the Supreme Court, the rights of transgender students in public schools will continue to vary depending on where they are enrolled.