May 31, 2017
Yesterday, the U.S. Court of Appeals for the Seventh Circuit, whose territory includes Indiana, held that a public school requiring a transgender student to use the restroom assigned to the student’s biological sex violated both Title IX and the Constitution’s Equal Protection Clause. Born a female, the plaintiff student in Whitaker v. Kenosha United School District, began transitioning to a male at the beginning of his high school career. That transitioning included hormone treatments, medical and psychological diagnosis supporting the transitioning, and the assumption of a lengthy and consistent transgendered lifestyle. The student ranked in the top five percent academically, actively participated in extracurricular performing arts and athletics, and was inducted into the high school’s National Honor Society.
During the first three years of his high school career, the administration first encouraged, then required, the student to use the girl’s restroom or a keyed, single uni-sex restroom. Intermittently, the student unilaterally chose to use the boy’s restroom for extended, months long periods. His usage of those facilities went without incident. Near the end of his junior year, a teacher observed the student using the boy’s restroom and school administration began more stringent enforcement of its unwritten bathroom use policy.
The student asserted that limiting restroom access caused him to suffer stigmatization, as well as adverse medical side effects, because he self-limited fluid intake to avoid the stigmatization. The trial court entered a preliminary injunction in favor of the student and prohibited the school from limiting the student’s access to the boy’s restroom.
On appeal, the Seventh Circuit upheld the trial court’s decision by adopting an analysis commonly used in employment discrimination claims. The Court found the school discriminated against the student because of his failure to conform to stereotypical gender norms. By requiring the student to use a bathroom that does not track his gender identity, the school punished the student for his gender non-conformance, which violates Title IX.
The Court then analyzed the constitutional claim, finding that the school also violated the student’s Equal Protection rights. Reasoning that the trial court found that sex stereotyping occurred, the Court held that the school must meet a heightened standard to justify its bathroom policy. To meet that standard, the school must not only possess a genuine reason, but also an exceedingly persuasive reason to support its policy. The Court highlighted that the school received no student complaints about plaintiff’s bathroom use and the expressed concerns of privacy, body differentiation and “sneaking glances” are already present in some biological sex restrooms. A transgendered student’s presence creates no greater risk, especially in this circumstance where there had been no report of problems.
In reaching its decision, the appellate court focused on a variety of factors, including (1) the school’s lack of a written policy, (2) the student suffering serious physical conditions, as well as suicidal thoughts, (3) the educator’s negative response to and labeling of the student, (4) the ease in changing the sex designation on a passport and some states’ birth certificates, and (5) the lack of problems in the student’s bathroom use, other than a few parental complaints. The decision also highlights the court system’s continued trend of extending employment discrimination analysis to Title IX litigation. The Court did note that it was not tossing out all privacy concerns in the bathroom setting and specifically stated that it was not deciding that transgender students are, per se, a protected class. Absent also from the Court’s decision is any discussion of locker room access.
If you have any questions about this court decision, or would like a copy of it, please contact us.
Warrick & Boyn, LLP, is a full-service law firm in Elkhart, Ind., that practices in all areas of business and corporate law. Areas of practice include commercial litigation, creditors’ rights and bankruptcy law, labor and employment law, defense litigation, securities law and regulation, worker’s compensation defense, education and school law, EEOC law, employee benefits law and pension plans, environmental law and regulation, tax and estate planning, municipal law, and property and real estate law. The firm’s clients are located primarily in northern Indiana and southwestern Michigan, and most of the attorneys are licensed to practice in both Indiana and Michigan.