A unanimous three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit upheld a trial court’s preliminary injunction that requires a Wisconsin school district to allow Ashton Whitaker, a transgender boy, to use the boys’ restroom facilities at his high school during his senior year. Whitaker v. Kenosha Unified School District No. 1 Board of Education, 2017 U.S. App. LEXIS 9362, 2017 WL 2331751. Circuit Judge Ann Claire Williams wrote the court’s opinion, joined by Circuit Judges Diane Pamela Wood and Ilana Rovner. This May 30 decision is a landmark ruling: For the first time, a federal appeals court has ruled that Title IX of the Education Amendments Act of 1972, which bans sex discrimination by educational institutions that get federal money, prohibits discrimination against transgender students. The court also ruled that a transgender student subjected to discriminatory treatment by a public school could sue under the Constitution’s Equal Protection Clause.
In a prior ruling involving Gavin Grimm, a transgender boy who is about to graduate from a Virginia high school, the Richmond-based 4th Circuit Court of Appeals ruled that the federal courts should defer to the Obama Administration’s “reasonable” interpretation of Title IX providing protection to transgender students, but that ruling was vacated by the U.S. Supreme Court recently after the Trump Administration withdrew the Obama Administration’s interpretation after the Court had agreed to review the 4th Circuit’s decision. Gavin Grimm’s appeal from a district court’s denial of his Title IX claim is still pending before the 4th Circuit, although the case may be mooted by his graduation.
Judges Williams and Wood were appointed to the court by President Bill Clinton. Judge Rovner was appointed by President George H. W. Bush. Throughout the opinion, Williams refers to the plaintiff as “Ash,” using the name he prefers and used throughout the papers filed in this lawsuit.
Judge Williams succinctly summarized what the case is about in her matter-of-fact opening sentence: “Ashton (‘Ash’) Whitaker is a 17 year-old high school senior boy who has what would seem like a simple request: to use the boys’ restroom while at school.” The request did not seem simple to Kenosha school authorities, however, because Whitaker is a transgender boy and, as far as the school district is concerned, should be treated as a girl unless or until Ash presents documentation of a completed surgical gender transition resulting in a new birth certificate designating him as male. However, under the recognized standard of care for gender dysphoria, genital surgery may not be performed until the individual reaches age 18, and his birth state of Wisconsin will not issue such a birth certificate without proof of surgical sex reassignment, so there is no way that Ash Whitaker can satisfy the district’s unwritten policy for being treated as a boy while he is a student there.
According to the court’s opinion, Ash was in the 8th grade when he told his parents that “he is transgender and a boy.” When he entered Tremper High School as a freshman in the fall of 2013, he identified himself as a boy, cutting his hair short, wearing masculine clothing, and using the name Ashton and male pronouns to refer to himself. “In the fall of 2014, the beginning of his sophomore year, he told his teachers and his classmates that he is a boy and asked them to refer to him as Ashton or Ash and to use male pronouns,” wrote Williams. He also began to see a therapist, who formally diagnosed him with gender dysphoria. After his junior year, he began hormone replacement therapy under the supervision of an endocrinologist and petitioned a local court for a legal name change, which was granted in September 2016.
Ash and his mother began to meet with school authorities in the spring of his sophomore year to request that he be permitted to use the boys’ restrooms at school, but the authorities were resistant. Although the school district has no written policy on the matter, the administration informed him that he was not allowed to use the boys’ restroom, and that they would make an exception to the usual rules and allow him to use a gender-neutral restroom in the school’s main office. This was not particularly helpful to him, since the main office was “quite a distance from his classrooms.” Using that restroom between classes would make him late for class. And, explained Judge Williams, “because Ash had publicly transitioned, he believed that using the girls’ restrooms would undermine his transition.” And since he was the only student authorized to use the gender-neutral bathroom in the office, “he feared that using it would draw further attention to his transition and status as a transgender student at Tremper.”
There was also a medical complication. Ash has been diagnosed with vasovagal syncope, a condition that makes him susceptible to fainting or seizures if he becomes dehydrated, so he has to drink liquids frequently, which means he needs those bathroom breaks between classes and he can’t easily get by with “holding his water” throughout the day. In an attempt to avoid having to use bathrooms during the day, he did attempt to restrict his water intake, but with predictable results: fainting and dizziness. In addition, the restrictions placed on him led him to suffer stress-related migraines, depression, and anxiety. “He even began to contemplate suicide,” wrote Williams.
When he began his junior year in the fall of 2015, he decided to take a risk and use the boys’ restrooms, hoping not to be caught or disciplined. “For six months, he exclusively used the boys’ restrooms at school without incident,” wrote Williams, “but, in February 2016, a teacher saw him washing his hands at a sink in the boys’ restroom and reported it to the school’s administration.” A guidance counselor contacted his mother and reiterated the restrictive restroom policy. Ash and his mother met with the assistant principal, who stood firm, pointing out that Ash was listed on the school’s official records as female and any change would require “legal or medical documentation.” Subsequent correspondence eventually clarified that written certification of his gender dysphoria and of his name change would not be sufficient for the school. They wanted a male-designated birth certificate before they would make any change.
Despite this incident, Ash continued to use the boys’ restrooms, causing him anxiousness and depression. From the court’s description, it sounds like a “cat and mouse game” was going on at the high school, as security guards were “instructed to monitor Ash’s restroom use” and he sought to evade their gaze. He was caught a few times and removed from classes to get dressed down by administrators, however, leading classmates and teachers to ask about what was going on. In April 2016, the school expanded Ash’s restroom access to include two single-user, gender-neutral locked restrooms on the opposite side of the campus from where his classes were held. He was the only student issued a key to these restrooms. But again, due to their location they were of little use to him if he wanted to avoid being late for classes, and he felt further stigmatized, avoiding these restrooms entirely. “In addition,” wrote Williams, “Ash began to fear for his safety as more attention was drawn to his restroom use and transgender status.” He also began to suffer various other kinds of discrimination connected with the school’s insistence on treating him as a girl, but when he decided to take legal action he restricted his complaint to the bathroom issue.
Ash found a lawyer, who sent a demand letter to the school district, which declined to change its position. Then Ash filed a complaint with the U.S. Education Department’s Office of Civil Rights, alleging a violation of Title IX. But when it became clear that the administrative process would take too much time to provide relief for him before his senior year began, he withdrew the complaint and filed his lawsuit, seeking a preliminary injunction that would get him restroom access for his senior year.
The school district filed a motion to dismiss the lawsuit, claiming that neither Title IX nor the Constitution provided a legal cause of action for Ash. District Judge Pamela Pepper denied the motion to dismiss and granted Ash’s motion for a preliminary injunction that would allow him to use the boys’ restrooms at school while the case was pending. A prerequisite for issuing the injunction was Judge Pepper’s determination that Title IX and the Equal Protection Clause both gave Ash legal claims on which he had a “better than negligible” chance of succeeding and that he would suffer irreparable injury, greater than any injury suffered by the school district, if he was denied this relief.
The school district attempted to appeal Judge Pepper’s denial of its motion to dismiss, but the 7th Circuit refused to consider that appeal last year. A denial of a motion to dismiss a lawsuit is not a final judgment, because it just means that the lawsuit will continue, and if the defendant loses, then the defendant can appeal the final judgment. Although there is a narrow set of circumstances in which a court of appeals will consider an appeal by a defendant whose motion to dismiss has been denied, this case did not fit within them, a point the court reiterated in its May 30 ruling. The school district also appealed from Judge Pepper’s preliminary injunction, but the 7th Circuit panel unanimously affirmed Judge Pepper.
The court easily rejected the school district’s argument that Ash would not suffer irreparable harm because the district had made available to him gender-neutral restrooms. The school district also contested the expert testimony offered by a psychologist about the harm that its policies were inflicting on Ash. Judge Williams quoted Dr. Stephanie Budge’s testimony that the district’s treatment of Ash “significantly and negatively impacted his mental health and overall well-being.” Clearly, such an effect could not be compensated by an award of monetary damages at a later date, and was thus “irreparable” as that term is used by the courts. Dr. Budge testified that the school district’s actions, including its bathroom policy, which identified Ash as transgender and therefore, “different,” were “directly causing significant psychological distress and place him at risk for experiencing life-long diminished well-being and life-functioning.” The court of appeals found no clear error in Judge Pepper’s reliance on this expert testimony, which was not effectively rebutted by the school district. Furthermore, his experience of using the boys’ restrooms for six months without any incident or complaints from students or teachers belied the school district’s argument that it would suffer serious injury if he were allowed to use those restrooms.
As to the likelihood that Ash would prevail on the merits of his claim at trial, the court did not have to strain much to reach that conclusion. Judge Williams noted that the 7th Circuit, like other courts of appeals, has looked to cases decided under Title VII of the Civil Rights Act of 1964 to determine the scope of the ban on sex discrimination. On April 4, the 7th Circuit ruled in Hively v. Ivy Tech Community College, 853 F.3d 339, an employment discrimination case, that a lesbian who was denied a faculty position because of her sexual orientation could bring a sex discrimination claim under Title VII. That ruling was heavily based on a line of federal cases under Title VII that had adopted a broad interpretation of “discrimination because of sex,” and Judge Williams found that the logic of those cases had clearly overruled the 7th Circuit’s decision in Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), in which it had denied a Title VII claim by a transgender airline pilot. The Ulane case predated the Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Court found that discrimination against a person because of their failure to conform to sex stereotypes could be found to violate Title VII. In effect, the Court said that Title VII applied to discrimination because of gender, not just because of biological sex.
“By definition,” wrote Williams, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” The judge cited a long list of federal court rulings that have reached this conclusion and applied Title VII to cases of gender identity discrimination. The court rejected the school district’s argument that Congress’s failure to amend Title IX or Title VII to expressly protect people based on their transgender status required a different conclusion, and held that “Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender.” She also pointed out that the school district was misrepresenting Ash’s claim when it argued that he may not “unilaterally declare” his gender, ignoring the medical diagnosis of gender dysphoria.
“Since his diagnosis,” wrote Judge Williams, “he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain. Therefore, we find that Ash has sufficiently established a probability of success on the merits of his Title IX claim.” The court held similarly regarding Ash’s alternative constitutional equal protection claim, rejecting the school district’s argument that because it has a “rational basis” for adopting its restroom access rule – protecting the privacy of male students who did not want to use a restroom with a girl – it could prevail over Ash on the constitutional claim. Because the court had concluded that a gender identity discrimination claim is in actuality a sex discrimination claim, it followed that the level of judicial review would be the same that courts use for sex discrimination claims: heightened scrutiny. Under this standard, the discriminatory policy is presumed to be unconstitutional and the school district has the burden to show that it has an “exceedingly persuasive” justification for adopting the policy.
Such a justification cannot rely on “sheer conjecture and abstraction,” but that’s all the school district had. Judge Williams observed that the administration had never received any complaint from other students about Ash using the boys’ restrooms. “This policy does nothing to protection the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.” Indeed, Williams might have gone on to write, it would be ludicrous to suggest that a transgender boy is going to expose himself at a urinal, or stand at a urinal and glance over at other boys using the adjacent facilities.
“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions,” wrote the judge. “Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”
In an interesting excursion into the hotly contested science of sexual identity, Williams added that the school administration’s insistence on treating people in accord with sex markers on birth certificates would not necessarily address their concerns. “The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex,” she wrote. “Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that are ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.”
She also noted the lack of consistency among the various states in what they require to change birth certificates. Depending where a transgender student was born, they might be able to get a new certificate without a surgical sex reassignment procedure, thus defeating the school’s underlying purpose in relying on the birth certificate. She also pointed out that the school district did not have a policy requiring newly registering students to present birth certificates, allowing them to present passports as identification as an alternative. The U.S. State Department no longer requires proof of sex-reassignment surgery for a transgender man to get a passport correctly identifying his gender, so a transgender boy who had obtained an appropriate passport could register in the Kenosha School District as a boy.
Thus, having found that Ash’s allegations fulfilled all the tests required for obtaining a preliminary injunction, the court denied the school district’s appeal and affirmed the injunctive relief. There were no immediate indications that the school district would seek en banc review or petition the Supreme Court for a stay.
Ash is represented by Robert Theine Pledl of Pledl & Cohn, Milwaukee; Joseph John Wardenski and Sasha M. Samberg-Champion, of Relman, Dane & Colfax PLLC, Washington D.C.; and Shawn Thomas Meerkamper, Alison Pennington and Ilona M. Turner, with the Transgender Law Center of Oakland, California. Amicus briefs in support of Ash’s case were received from a variety of groups representing school administrators, parents, students, and LGBT rights organizations. Among those joining in were Lambda Legal, PFLAG, Gay-Straight Alliances, and women’s rights groups, with several major law firms stepping up to author the amicus briefs. The only amicus support for the school district came from Alliance Defending Freedom (ADF), the anti-gay religious litigation group that has championed lawsuits attacking school districts for allowing transgender students to use facilities consistent with their gender identity.