Wednesday, September 21, 2016

High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds

A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution.  Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions.  (It is not clear to me whether this policy actually took affect.)

Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed.  On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.  

Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case.  Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.