On May 30, 2017, the United States Court of Appeals for the Seventh Circuit affirmed a district court’s entry of a preliminary injunction allowing a transgender student to use school restrooms aligned with his gender identity. The Seventh Circuit held that Title IX of the Education Amendments Act of 1972 protects transgender students against sex stereotyping and that a School District’s policy affecting bathroom access of transgender students is subject to heightened review under the Fourteenth Amendment’s Equal Protection Clause.
Last year, the United States Court of Appeals for the Fourth Circuit ruled that a school district discriminated against a transgender student’s rights by limiting the usage of boys’ restrooms to biological males. Notably, in its decision the Fourth Circuit gave deference to the Obama administration’s guidance document stating that Title IX’s prohibitions of discrimination “on the basis of sex” require access to sex-segregated facilities based on gender identity. The United States Supreme Court granted a writ of certiorari to review the Fourth Circuit’s ruling, which would have been the Court’s first analysis of transgender student rights.
While the case was pending before the Supreme Court, in February 2017, the Trump administration withdrew the Obama administration’s guidance document, asserting that further analysis is necessary and its predecessor issued the guidance without a formal public review process. Consequently, the Supreme Court promptly entered a one-line order vacating the Fourth Circuit’s ruling and remanding the case for further proceedings.
As we address below, the Seventh Circuit’s recent ruling is significant because the court analyzed Title IX’s statutory scope directly. In doing so, the Seventh Circuit relied upon the statute itself and judicial precedent, not administrative guidance, in its interpretation.
The Seventh Circuit set the factual context succinctly in its opening paragraph:
Ashton (“Ash”) Whitaker is a 17 year-old high school senior who has what would seem like a simple request: to use the boys’ bathroom at school. However, the Defendants, the Kenosha United School District and its superintendent, Sue Savaglio, (the “School District”) believe the request is not so simple because Ash is a transgender boy. The School District did not permit Ash to enter the boys’ bathroom because it believed that his mere presence would invade the privacy rights of his male classmates.
While Ash’s birth certificate designates him as a female, he identifies as male. Ash, who has been diagnosed with gender dsyphoria, began transitioning during his freshman year of high school and generally received acceptance from his teachers and classmates. The School District, however, was not as accepting to Ash’s requests to use the boys’ restrooms, requiring his usage of the girls’ restrooms or a gender neutral restroom located in his high school’s main office—a significant distance from his classrooms. Ash feared that this requirement would stigmatize him and his transition, so he limited his liquid intake, which put him in physical harm. He suffered from stress, depression, anxiety and suicidal thoughts, as he faced what “he perceived to be the impossible choice between living as a boy or using the restroom.”
During his junior year, Ash defied the School District’s directives and used the boys’ restrooms for several months without incident until a teacher reported his usage to the School District. The School District reiterated that Ash could not use boys’ restrooms, informing him that the school’s official records listed him as female and this designation could not be changed without unspecified “legal or medical documentation.” Despite Ash’s submission of letters from his pediatrician identifying him as transgender, the School District did not change the record designation and maintained that Ash would have to complete a surgical transition (a procedure prohibited for a minor).
Ash continued to use the boys’ bathrooms while facing his school’s increased security review of his actions. Ash was removed from classes to meet with administrators to account for his actions, which drew attention to him among his classmates and teachers. Near the end of his junior year, the School District provided Ash with the option of using two single-user, gender-neutral bathrooms on the opposite side of the school’s campus from his classrooms, which Ash deemed to be unacceptable and caused him to avoid going to the bathroom.
Before the start of his senior year, Ash filed suit in the United States District Court for the Eastern District of Wisconsin against the School District alleging violations of Title IX and the Equal Protection Clause. The federal district court granted Ash’s motion for a preliminary injunction, enjoining the School District from (1) denying Ash access to a boys’ restroom; (2) enforcing any written or unwritten policy against Ash preventing his use of a boys’ restroom while on school property or attending school-sponsored events; (3) disciplining Ash for using a boy’s restroom; and (4) monitoring or surveilling his restroom use. The district court denied the School District’s motion to dismiss Ash’s case. The School District filed an appeal to the Seventh Circuit, which declined to review the School District’s motion to dismiss because it was an interlocutory appeal and affirmed the entry of the preliminary injunction.
Ash and the School District disputed the scope of Title IX’s coverage and whether under the statute, a transgender student who alleges discrimination on the basis of his or her transgender status can state a claim of sex discrimination. As the Seventh Circuit noted, neither the statute nor its implementing regulations define the term “sex.” Also absent from the statute is the term “biological,” which the School District maintained is a necessary modifier. Therefore, the Seventh Circuit turned to Supreme Court case law analyzing Title VII’s prohibitions against employment discrimination, noting that federal courts have relied upon Title VII rulings to interpret Title IX’s scope.
Particularly, the court referenced Supreme Court precedent embracing an expansive view of Title VII and striking “at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” The School District argued, even applying a sex stereotyping theory under Title IX, Ash could not prevail because its policy is not based upon preconceived notions of how a student behaves, walks, talks or dresses. The Seventh Circuit rejected the School District’s “narrow” argument, concluding that, by definition, “a transgender individual does not conform to sex-based stereotypes of the sex he or she was assigned at birth.”
The School District also argued that the allowance of a sex-based stereotyping claim “flies in the face of Title IX, as Congress has not explicitly added transgender status as a protected characteristic to either Title VII or Title IX despite having opportunities to do so.” The Seventh Circuit quickly dispatched this argument, concluding that congressional inaction should not be construed as a limitation on the broad scope applied judicially under the anti-discrimination statutes. Courts have recognized that a plaintiff’s transgender status is not a bar to a Title VII claim, and the Seventh Circuit adopted the Title VII analysis in the context to Ash’s Title IX claim. Specifically, the Seventh Circuit found that Ash has shown a likelihood of success on the merits where the School District has denied Ash access to the boys’ restroom because he is transgender. “A policy that requires an individual to use a bathroom that does not conform to his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.” The policy “subjects Ash, as a transgender student, to different rules, sanctions and treatment than non-transgender students in violation of Title IX.”
The School District’s provision of a gender-neutral alternative does not relieve it from liability, as the policy itself violates Title IX. Further, the factual record showed that the alternatives provided to Ash were not true alternatives, given that the restrooms were far away from his classes and caused increased stigmatization and that he was the only student allowed access to the gender-neutral bathrooms.
Finally, the Seventh Circuit rejected the School District’s contention that Ash may not “unilaterally declare” his gender, which the court found to misrepresent Ash’s claims and his transgender status. Ash, who has a medically diagnosed and documented condition, has consistently lived in accordance with his gender identity. His lawsuit demonstrates that “the decision to do so was not without cost or pain.”
While the Seventh Circuit’s Title IX analysis alone supports the preliminary injunction, the court further ruled that Ash has also shown a likelihood of success on his Equal Protection Clause claim. As a threshold matter, the court determined the appropriate standard of review applicable to Ash’s constitutional claim. The Seventh Circuit declined to apply the deferential “rational basis” test, which would require a mere showing that the School District’s bathroom policy is rationally related to a legitimate state interest. Rather, a sex-based classification must be subject to “heightened scrutiny.” The School District’s “policy cannot be stated without referring to sex,” restricting a student’s use of a bathroom based upon the sex listed on his or her birth certificate.
Because the School District treats differently transgender students who do not conform to sex-based stereotypes associated with their assigned sex at birth, it must show an “exceedingly persuasive” justification for its bathroom policy. The Seventh Circuit held that the School District failed to meet its heightened burden, finding its justifications to be speculative and unsubstantiated. For example, the School District cited the need to protect the privacy rights of all of its students, but the facts of the case showed no evidence of any complaints from other students about Ash’s use of the boys’ bathrooms. The Seventh Circuit also concluded that a transgender student’s presence in a restroom poses no more of risk to other students’ privacy than the presence of any other student. Finally, the court found the School District’s reliance on the sex marker on a birth certificate to be arbitrary. This was especially evident where the requirement was not part of a written policy, and such a requirement fails to recognize that the marker may not always adequately account for or reflect one’s biological sex (e.g., one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another).
The Seventh Circuit’s ruling is a strong statement for the rights of transgender students to access school facilities. Because Ash’s lawsuit has been litigated over the course of his senior high school year, it may ultimately be settled in lieu of additional proceedings through trial. Nonetheless, the Seventh Circuit ruling upholding a preliminary injunction sends a clear signal that a Title IX recipient should carefully evaluate its policies and procedures relating to a transsexual student’s access to school facilities. Disparate treatment could result in a private cause of action for injunctive relief and the payment of monetary damages, as well as statutory attorneys’ fees under Title IX.
As the issues relating to transgender student rights proceed through federal district courts outside the Seventh Circuit and ultimately to other federal appellate courts, we will evaluate and report on whether there will be uniformity in the judicial analysis or a split in circuit rulings that could prompt Supreme Court review. Also, the Trump administration has yet to state its position on the Title IX analysis applicable to transgender students, following its withdrawal of the Obama administration’s guidance, which could result in more clarity or promote more uncertainty depending upon its positions. Further, schools must recognize not only their obligations under Title IX and the Constitution (if a public actor), but also all applicable state laws defining transgender student rights.
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