The U.S. Court of Appeals for the Seventh Circuit this week became the first federal appeals court to recognize transgender students’ right to use bathroom facilities that align with their gender identity under Title IX of the Education Amendments of 1972 and the U.S. Constitution.
The ruling marks a landmark decision in favor of transgender rights.
In Whitaker v. Kenosha Unified School District, a unanimous three-judge panel of the Seventh Circuit upheld an injunction issued by a lower court that has allowed Ash Whitaker—a transgender student at Tremper High School in the Kenosha Unified School District in Kenosha, Wisconsin—to use the boys’ bathroom at school throughout his senior year without being subjected to questioning, discipline, or surveillance by school officials.
In an opinion penned by Judge Ann Claire Williams, a Black woman appointed to the bench by President Bill Clinton, the court reasoned that the school district’s policy was a form of sex stereotyping, citing the landmark U.S. Supreme Court case Price Waterhouse v. Hopkins. In Price Waterhouse, the Court recognized that discriminating against an employee for failing to conform to stereotypical gender norms can be justification for legal action under Title VII of the Civil Rights Act of 1964. Title VII and Title IX cases are often analyzed using the same set of legal principles.
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As in Price Waterhouse, Williams reasoned, Whitaker was subjected to sex stereotyping because of his failure to conform to arbitrary societal norms about gender.
The court also ruled that the bathroom policy created a sex-based classification that subjected Whitaker to discrimination, thus warranting the application of heightened scrutiny under the Equal Protection Clause of the 14th Amendment. The district’s rationale for barring Whitaker from using the boys’ restroom could not withstand that heightened scrutiny, according to the court.
The school district defended its bathroom policy by claiming it was necessary to protect the privacy rights of all 22,160 students in the district.
At the outset, as the court pointed out, the preliminary injunction barring the school from applying its discriminatory bathroom policy applies only to Whitaker, who is just one student at one of the district’s high schools. The district offered no rationale as to how allowing one student to use his preferred bathroom at one high school would have any bearing on the thousands of students at other high schools.
“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, a transgender boy, uses the bathroom: by entering a stall and closing the door,” Williams wrote for the unanimous three-judge panel.
“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,” Williams continued.
“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,” she went on.
With regard to the lower court’s ruling, Williams said, “The School District has not demonstrated that it will suffer any harm from having to comply with the district court’s preliminary injunction order.”
Before he sought injunctive relief from the courts, Whitaker used the boys’ bathroom at school for nearly six months without incident or complaint from another student. It wasn’t until a teacher saw Whitaker washing his hands in the boys’ restroom that his bathroom usage became an issue. Indeed, as the court pointed out, the school district did not produce any evidence that any student ever complained about Whitaker’s presence in the boys’ room. The district also did not produce any evidence that his presence in the bathroom caused an actual invasion of another student’s privacy.
The court also noted that the school district had never provided written documentation detailing when its discriminatory bathroom policy went into effect, what the policy was, or how a student could change their status under the policy.
Notably, the Seventh Circuit came to its decision without referencing the guidelines that the Department of Education under the Obama administration released in 2014, warning that schools that forced transgender students to use segregated bathrooms or bathrooms inconsistent with their gender identity would be considered in violation of Title IX.
This fact sets the case apart from Gavin Grimm’s, which the Supreme Court recently returned to the Fourth Circuit for further consideration after the Trump administration rescinded the Obama-era guidance on schools’ Title IX obligations to transgender students. As Rewire Vice President of Law and the Courts Jessica Mason Pieklo noted, however, Title IX protects transgender students irrespective of the Trump administration’s efforts to roll back their civil rights.
This decision is a great victory for Whitaker and for transgender students in Indiana, Wisconsin, and Illinois—the states that are encompassed by the Seventh Circuit. However, the court punted on the broad question of whether transgender status automatically warrants heightened scrutiny—either intermediate or strict scrutiny—under the Equal Protection Clause.
Since the Supreme Court first articulated the concept in the 1930s, it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”—require special constitutional protection against laws that discriminate them. These are groups that constitute a small percentage of the population and therefore lack the political power to oppose tyranny by those with larger numbers; groups that have historically been subjected to discrimination; and groups with “immutable characteristics,” a term coined by the Court to describe traits like race and gender.
For example, the Supreme Court has deemed Black people a “suspect class.” Laws that discriminate against Black people rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law targets Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.
Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”
But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class. This leaves transgender people twisting in the legal wind and permits laws that target them to be examined using rational basis review, which rarely results in legislation being struck down.
The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, particularly trans women of color, is staggering, as are poverty levels.
A 2011 report issued by the National Center for Transgender Equality found that 78 percent of students surveyed who identified as transgender or gender non-conforming report being harassed while in grades K-12. These same students reported high rates of assault: Thirty-five percent reported physical assault and 12 percent reported sexual assault. Fifteen percent of the transgender and gender nonconforming students surveyed dropped out of school.
These statistics suggest transgender people are a target for discrimination. And the rapidity with which laws targeting transgender people are being introduced and enacted in Republican-held state legislatures indicates that trans people require the same constitutional protection afforded to groups that the Supreme Court has already deemed suspect classes.
Even so, lower courts have time and again refused to deem them as such for purposes of the Equal Protection Clause of the 14th Amendment. In their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”
Sometimes transgender students find success in federal court under different statutes, as Whitaker and Grimm have so far.
Others, however, aren’t so lucky.
In Johnston v. University of Pittsburgh, for example, a transgender man was repeatedly disciplined for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university, claiming discrimination under Title IX and the Equal Protection Clause. The district court rejected both claims in March 2015, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the “opposite sex.” The court went on to note, “[t]his justification has been repeatedly upheld by courts.”
The mixed results coming from federal lower courts and appeals courts suggests that the Supreme Court will need to step in sooner rather than later. And when it does, it will have the opportunity to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. A definitive ruling from the Court on this matter would both set a clearer standard against which courts can judge alleged acts of discrimination and extend transgender protections beyond the claims made under either Title VII or Title IX.
Thus far, only one court has made those broad moves: A federal district court judge in New York ruled in 2015 that transgender people are a protected class in a case called Adkins v. City of New York.
In that case, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit, arguing that under a 2009 case, Lopez v. City of New York, transgender people are not a protected class and that his equal protection claims should be subject only to rational basis review.
Adkins countered that the appropriate standard of review is intermediate scrutiny, because discrimination against transgender people is a form of gender discrimination—or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.
The court sided with Adkins, ruling that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. United States, the case that eventually led to the downfall of the Defense of Marriage Act. The Second Circuit in Windsor ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened. The court in Adkins ruled that trans people are a quasi-suspect class like gay people.
For Whitaker’s part, he is thrilled with the decision. “I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” he said, according to a press release from the Transgender Law Center.
“After facing daily humiliation at school last year from being threatened with discipline and being constantly monitored by school staff just to use the bathroom, the district court’s injunction in September allowed me to be a typical senior in high school and to focus on my classes, after-school activities, applying to college, and building lasting friendships,” he continued.
“As I look forward to college next year, I hope my case will help other transgender students in Kenosha and elsewhere to just be treated the same as everyone else without facing discrimination and harassment from school administrators.”