In a landmark decision, a unanimous three-judge panel from the Seventh Circuit became the first federal appellate court to recognize Title IX’s prohibition against sex discrimination as a direct protection for transgender students’ right to use the bathroom that corresponds with their gender identity. The case is Whitaker v. Kenosha Unified School District.
Ash Whitaker, a transgender high school student in Kenosha Unified School District, brought this suit so that he could use the boys’ restroom at school. Whitaker had used the boys’ restroom without incident for six months beginning his junior year, until a teacher spotted him in there and reported it to the administration. The school then told Whitaker he had to use the girls’ restroom or a gender-neutral bathroom. After Whitaker continued to use the boys’ restroom, he was removed from class several times for doing so. Although Ash identifies as a boy, the School District would only allow him to use the girls’ or the gender-neutral bathroom at school.
When reviewing a granted preliminary injunction, a court must decide that the plaintiff is likely to prevail on the merits on the case. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX and the Equal Protection Clause’s ban on sex discrimination encompasses discrimination against transgender students. The Seventh Circuit panel found that the school district had likely violated both laws that prohibit discrimination “on the basis of sex.” The Court determined that policies requiring an individual to use a bathroom that is inconsistent with his or her gender identity punishes that individual for gender non-conformance and relies on gender stereotypes, which violates Title IX. Importantly, the Court held: “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth… 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.” This common sense ruling has broad implications for the rights of transgender individuals, and could readily be extended to apply to other settings, such as workplace discrimination.
Notably, in its opinion, the Seventh Circuit did not reference the Fourth Circuit case Grimm v. Gloucester County School Board. In that case, the court ruled in favor of the plaintiff, but did so by extending judicial deference to the U.S. Department of Education’s interpretation of “sex” under Title IX. The Fourth Circuit found an ambiguity in the law and to resolve it, relied on the May 13, 2016 Department of Education Opinion Letter, defining how to interpret the separate facilities section for transgender students. The Opinion Letter said that schools with sex-segregated facilities generally “must treat transgender students consistent with their gender identity.”
On appeal to the U.S. Supreme Court in Grimm, the judgment was vacated and remanded for further consideration in light of the Trump Administration’s February 22, 2017 guidance document from the Department of Education and Department of Justice which withdrew the May 13 guidance protecting transgender students. On remand, the Fourth Circuit lifted the injunction that had allowed Grimm to use the boys’ restroom, though two concurring judges praised the teen and his “struggle for justice.” The Seventh Circuit decision in Whitaker, relying on the text of Title IX and the Equal Protection Clause, addresses the definition of “sex” head on and provides a strong basis for protection for transgender students under federal law, and may prove persuasive to the Fourth Circuit as an alternate grounds for supporting transgender rights.