Ash Whitaker (right), with his mother, Melissa. | TRANSGENDER LAW CENTER
BY ARTHUR S. LEONARD | A unanimous three-judge federal appeals panel has upheld a trial court’s preliminary injunction requiring a Wisconsin high school to allow a transgender boy to use the boys’ bathroom facilities during his senior year there.
The landmark May 30 ruling from the Chicago-based Seventh Circuit Court of Appeals represents 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 receiving federal money – prohibits discrimination against transgender students.
The court also ruled that the plaintiff, Ashton Whitaker, and other transgender students subjected to discriminatory treatment by a public school could sue under the Constitution’s Equal Protection Clause.
In Ash Whitaker’s suit, Chicago-based appeals court upholds principle Gavin Grimm fought for in Virginia
Judge Ann Claire Williams wrote the court’s opinion, joined by Chief Judge Diane Pamela Wood and Judge Ilana Rovner. Williams and Wood were appointed to the court by President Bill Clinton, with Rovner named by President George H. W. Bush.
In a prior ruling involving Gavin Grimm, a transgender boy about to graduate from a Virginia high school, the Richmond-based Fourth 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. That ruling, however, was recently vacated by the US Supreme Court after the Trump administration withdrew the Obama determination after the high court had already agreed to review the Fourth Circuit decision.
Grimm’s appeal of a district court’s denial of his underlying Title IX claim is still pending before the Fourth Circuit, which has scheduled a September hearing in the case.
Williams succinctly summarized what the Wisconsin case was 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 transgender and, as far as the school district is concerned, should be treated as a girl unless Ash presents a new birth certificate designating him as male, which, under Wisconsin law, he can only obtain with proof of surgical gender reassignment. Whether or not Whitaker desires such surgery, he could not undergo it until his 18th birthday under the recognized standard of care for gender dysphoria.
According to the court’s opinion, Ash told his parents about his gender identity when he was in eighth grade and entered Tremper High School as a freshman in the fall of 2013 presenting as a boy, with a short hair style and wearing masculine clothing.
A therapist subsequently diagnosed him with gender dysphoria, and in his junior year Whitaker began hormone replacement therapy under an endocrinologist’s care and petitioned a court to legally change his name to Ashton, by which he had been known since beginning high school.
In his sophomore year, Whitaker and his mother, Melissa, began meeting with school authorities to discuss his using the boys’ bathroom, but they were resistant. Acknowledging the lack of any written policy on the question, officials said they’d be willing to bend the rules to the extent of letting Ash use a single-user bathroom in the school’s main office – though that was “quite a distance from his classrooms” and would likely often make him late. And since no other student had access to that facility, “he feared that using it would draw further attention to his transition and status as a transgender student,” Williams wrote.
The alternative was unacceptable, the judge added, because since “Ash had publicly transitioned, he believed that using the girls’ restrooms would undermine his transition.”
A medical complication compounded the bathroom issue for Whitaker. Ash contends with vasovagal syncope, a condition that makes him susceptible to fainting or seizures if he becomes dehydrated, so he has to drink water frequently. As a result, speedy bathroom breaks between classes are important. Since the school was making his bathroom use cumbersome, he instead tried restricting his water intake, with predictable results: fainting and dizziness. The constraints the school insisted on imposing on Whitaker led him to suffer stress-related migraines, depression, and anxiety, as well.
“He even began to contemplate suicide,” wrote Williams.
When he began his junior year in the fall of 2015, Whitaker decided to risk using the boys’ bathrooms, and, wrote Williams, “For six months, he exclusively used the boys’ restrooms at school without incident, 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.” He and his mother were warned again and school officials were lobbied once more, but the policy remained unchanged.
Despite that, Ash continued to use the boys’ bathrooms while school security guards were “instructed to monitor Ash’s restroom use.” Caught a few more times, he was dressed down by administrators but was also offered access to a second single-user bathroom, that one also far away from his classes.
In time, wrote Williams, “Ash began to fear for his safety as more attention was drawn to his restroom use and transgender status.”
Finally, Whitaker and his family contacted a lawyer, who sent a demand letter to the school district, which declined to change its position. Ash next filed a complaint with the US Education Department’s Office of Civil Rights, alleging a violation of Title IX. When it became clear the administrative process would take too much time to provide relief before his senior year began last fall, he instead filed his lawsuit, seeking a preliminary injunction that would get him bathroom access for his final year at Tremper.
The school district filed a motion to dismiss the lawsuit, claiming that neither Title IX nor the Constitution provided Whitaker a legal cause of action. District Judge Pamela Pepper denied that motion to dismiss and granted Whitaker’s motion for a preliminary injunction while the case was pending. To do so, Pepper had to reach the conclusion 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 suffered by the school district – if he were denied relief.
The school district sought to appeal both Pepper’s denial of its motion to dismiss and her preliminary injunction. The Seventh Circuit refused to consider the first, and this week upheld Pepper on her preliminary injunction on Whitaker’s behalf.
The court easily rejected the school district’s argument that Ash would not suffer irreparable harm. First, the district itself had already offered him access to gender-neutral, single-use bathrooms. Judge Williams also quoted the testimony of a psychologist, Dr. Stephanie Budge, that the district’s treatment of Ash “significantly and negatively impacted his mental health and overall well-being” and “place[s] him at risk for experiencing life-long diminished well-being and life-functioning,” something that could not be compensated for later with a monetary award.
On the question of the school district suffering serious injury if Whitaker used the boys’ bathroom, the court pointed out that he did so for six months without incident or complaints from others.
Regarding Ash’s likelihood of success on the merits at trial, the court also didn’t need to strain to reach its conclusion. Williams noted that the Seventh Circuit, like other courts of appeals, often looks to Title VII of the 1964 Civil Rights Act to determine the scope of the ban on sexual discrimination and that the circuit, in Hively v. Ivy Tech Community College, a recent employment discrimination case, found that a lesbian who was denied a faculty position because of her sexual orientation could bring a Title VII sex discrimination claim. That decision, Williams found, clearly overruled a 1984 Seventh Circuit decision that denied a Title VII claim by a transgender airline pilot.
“By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth,” wrote Williams, who cited a long list of federal court rulings applying Title VII to cases of gender identity discrimination.
“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,” the judge found.
The panel also embraced Whitaker’s alternative constitutional equal protection claim, rejecting the school district’s argument that because it has a “rational basis” for adopting its bathroom access rule – protecting the privacy of male students who did not want to use a bathroom with a girl – it could prevail over Ash on the constitutional claim. Since the court concluded that a gender identity discrimination claim is – in actuality – a sex discrimination claim, the appropriate the level of judicial review would be the same that courts use for sex discrimination claims: heightened scrutiny. Under that stringent 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– not merely a “rational basis” (if, in fact, its argument is rational) – for adopting the policy.
Williams observed that the administration never received a single complaint from other students about Whitaker using the boys’ bathrooms.
“This policy does nothing to protect 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 restroom: by entering a stall and closing the door,” Williams wrote. “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… 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.”
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 Judge Pepper’s temporary injunction. There were no immediate indications that the school district would seek en banc review or petition the Supreme Court for a stay – and the impending end of Whitaker’s high school career might lead Kenosha officials to let the matter rest.
Whitaker is represented by Robert Theine Pledl of Pledl & Cohn in Milwaukee, Joseph John Wardenski and Sasha M. Samberg-Champion of Relman, Dane & Colfax PLLC, Washington, DC, and Shawn Thomas Meerkamper, Alison Pennington, and Ilona M. Turner with the Transgender Law Center of Oakland, California. Among those filing amicus briefs in his support were Lambda Legal, PFLAG, gay-straight alliances, and women’s rights groups. The only amicus support for the school district came from Alliance Defending Freedom (ADF), the anti-LGBTQ religious litigation group.
