Rebel Without A Stall: Title IX, Transgender Student Rights and Whitaker v. Kenosha

When the Trump Administration short-circuited the United States Supreme Court’s review of Gloucester v. G.G., in which the United States Court of Appeals for the Fourth Circuit had held that Title IX’s protections extend to transgender students, it seemed that transgender students’ rights were on life support.  Like Jarvis Lorry in Charles Dickens’ Tale of Two Cities, however, these students’ hopes were “recalled to life” when the United States Court of Appeals for the Seventh Circuit handed down its decision in Whitaker v. Kenosha Decision (5-30-17), holding therein that transgender students were covered both by Title IX and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The plaintiff in Whitaker was a 17-year-old senior at George Nelson Tremper High School in Kenosha, Wisconsin named “Ashton” or “Ash.”  Born a biological female, Ash began to openly identify as a boy as a freshman, cutting his hair, wearing masculine clothing, and using male pronouns when referring to himself.  As a sophomore, Ash asked his teachers and classmates to refer to him as a male.  In the summer prior to his senior year, Ash started hormone replacement, and in his senior year legally changed his name to “Ashton.”

When Ashton asked to use the boys’ bathroom at Tremper, however, the Kenosha school district responded as if end-times had arrived. Citing unspecified, and apparently unwritten, “policies,” the district instead required him to use either the girls’ bathroom or a gender-neutral bathroom in the main office, which was a significant distance from his classrooms and which Ash thought would stigmatize him.  Consequently, Ash drastically limited his water intake to avoid having to use the bathroom, which exacerbated a medical condition that renders him susceptible to fainting and seizures if dehydrated.  Already diagnosed with Gender Dysphoria, he also began experiencing migraines, depression and anxiety and was contemplating suicide.

Ash surreptitiously began using the boys’ bathroom, but when a teacher reported it to the school administration, the district reiterated its prohibition, noting that he was still listed as a female in the school’s records, which required “legal or medical documentation” to change. Consequently, Ash submitted two letters from his pediatrician, to which the district responded by claiming that, in fact, he would have to complete a surgical transition before he could use the boys’ bathroom, surgery that is illegal in Wisconsin for anyone under eighteen.  The district then instructed security guards to monitor Ash’s restroom use and even contemplated issuing bright green wristbands to transgender students so that their bathroom usage could be more easily tracked.

Ultimately, Ash filed suit, obtaining a preliminary injunction that prevented Kenosha from denying him access to the boys’ bathroom or disciplining him for using it. Kenosha appealed, but the Seventh Circuit affirmed the trial court, holding that Ash had established the necessary criteria for obtaining injunctive relief, including a reasonable likelihood of success on the merits under both Title IX and the Equal Protection Clause.  The court relied upon the theory of sex stereotyping, citing the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, in which a plurality of the Court held that it was a violation of Title VII – which, in part, prohibits gender-based discrimination in the workplace – to take adverse action against an employee for not conforming with gender stereotypes.

Although Kenosha argued that requiring a biological female to use a woman’s bathroom cannot be deemed sex stereotyping, the court noted that transgender refers to an individual who does not conform to the sex-based stereotypes of his or her biological sex.  Consequently, requiring Ash to use a bathroom that did not comport with his gender identity essentially punished him for his gender non-conformity and therefore violated Title IX.  Furthermore, it exposed Ash to different rules and sanctions than non-transgender students – who in using the bathrooms of their biological gender also were using the bathrooms of the gender with which they identified – again violating Title IX.

As to the Equal Protection claim, the Seventh Circuit rejected Kenosha’s assertion that when assessing Kenosha’s bathroom policy, the court should use the “rational basis test,” under which great deference is accorded the public body. Noting that Kenosha’s bathroom policy could not be stated without referencing gender, the court deemed it a sex-based classification subject to “heightened scrutiny.”  Thus, Kenosha was required to prove that its policy served “important governmental objectives,” and that it was “substantially related to the achievement of those objectives.”

Having established that standard, the court made short shrift of Kenosha’s “important governmental objectives,” protecting student bathroom privacy, observing that Ash surreptitiously used the boys’ bathroom for approximately six months, and that the sky had remained intact. Furthermore, the court reasoned that a transgender student’s presence in a bathroom posed no more of a risk to privacy rights than “an overly curious student of the same biological sex who decides to sneak glances at his or her classmates.”

So What Does It Mean?

Kenosha’s handling of Ash’s requests was so consistently ill-considered, it almost guaranteed the case’s outcome. In Whitaker’s wake, school districts located within the Seventh Circuit that have similar proscriptions to Kenosha’s will almost certainly be found to be in violation of both Title IX and the Fourteenth Amendment.  The Seventh Circuit’s decision will also serve as persuasive authority for courts in its sister circuits, and should another federal appellate court disagree with Whitaker, it could establish a conflict of law that may once again push the issue of transgender student rights to the Supreme Court, this time in a manner that the United States Departments of Education and Justice cannot derail.