Appeals Court Rules in Favor of Transgender Student's Preliminary Right to Use the Bathroom

Yesterday the Seventh Circuit Court of Appeals affirmed that transgender high school student Ash Whitaker may not be barred from the boys' bathroom while he litigates his case against the school district.  Whitaker, who identifies as male, sued the Kenosha Unified School District in Wisconsin after it restricted his access to the boys' restrooms because his natal sex is female. After Whitaker sued under Title IX and the U.S. Constitution's Equal Protection Clause, he sought a preliminary injunction that would allow him to use the correct bathroom while his case is being litigated; a lower court agreed and the school board's appeal of that decision produced yesterday's landmark ruling.

What made the Seventh Circuit's decision noteworthy is that it is the first time a federal appellate court has construed Title IX directly to cover discrimination against transgender students in the context of bathrooms. Another federal appellate court, the Fourth Circuit, reached a similar conclusion in Gavin Grimm's case, but only after extending judicial deference to the Department of Education's former interpretation of Title IX's application to transgender students' bathroom usage. The Department of Education's subsequent withdrawal of that interpretation meant that future courts could not rely on it as the basis for their rulings, as the Fourth Circuit had done, but did not foreclose courts from reaching the same interpretation on its own -- which the Seventh Circuit did yesterday.

When deciding to grant a preliminary injunction, a court must decide among other factors, that the plaintiff is likely to win on the merits. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX's ban on sex discrimination encompasses discrimination against transgender students. Even though an earlier decision from that court rejected the idea that sex discrimination laws covered transgender plaintiffs, the court acknowledged that subsequent Supreme Court caselaw interpreted the concept of sex discrimination more broadly to include discrimination based on gender stereotypes. And what is transgender discrimination, reasoned the court, than discrimination that targets an individual for presenting in a way that's different from what society expects based on the sex that person was assigned at birth.

Additionally, the court also found that Whitaker was likely to succeed on his Equal Protection claim.  Applying heightened scrutiny, the court recognized that the school would be unlikely to justify treating Whitaker differently from other students, who are permitted to use the bathroom that matches their gender identities. Though the school district claimed to be protecting students' privacy, the court could not see any evidence, at least at this preliminary stage of litigation, that anyone's privacy is infringed in bathrooms that have stalls. The court viewed the privacy "threat" from Whitaker no differently from any other student who may happen to be in the bathroom at the same time as another user. To the extent that Whitaker's different anatomy from other boys somehow makes privacy considerations different, the court noted that students with different anatomy use common bathrooms all the time, there being no effort by the school district, for example, to segregate pre-pubescent adolescents from those whose bodies are different and more mature.

What will happen next in this case? Theoretically, the school district can try to get the ruling overturned internally by the court, by seeking a rehearing in front of the full court.  But, the court's decision notes that Whitaker is a high school senior and it is already May.  Therefore, a decision by the full court would be unlikely to interrupt the preliminary relief he has obtained.  More likely, therefore, the case will continue to litigate the merits. Whitaker has also sued for compensatory damages, so that aspect of the case will not be mooted by the fact of his graduation from high school.