In Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al., No. 16-3522 (7th Cir. May 30, 2017), the Seventh Circuit Appellate Court affirmed a grant of preliminary injunctive relief that allowed a transgender boy to use the boys’ restroom while at school.
Ashton (“Ash”) Whitaker is a transgender high school senior. He exclusively used the boys’ restrooms at school until a teacher saw him washing his hands in the boys’ bathroom and reported it to the school’s administration. The School District informed Ash that he was permitted to only use the girls’ restrooms or the gender-neutral bathroom in the school’s main office. The School District believed that his mere presence would invade the privacy rights of his male classmates.
The School District further reasoned that Ash was listed as a female in the school’s official records and to change those records, the school needed unspecified “legal or medical documentation.” Two letters submitted by Ash’s pediatrician, identifying him as a transgender boy and recommending that he be allowed to use male-designated facilities at school were deemed not sufficient to change his designation. Rather, the school maintained that Ash would have to complete a surgical transition (a procedure that is prohibited for someone under 18 years of age) to be permitted access to the boys’ restroom. The School District never provided any written document that detailed when the policy went into effect, what the policy is, or how one can change his status under the policy.
Ash asserted that the denial of access to the boys’ bathroom was causing him educational, physical, and emotional harm, including suicidal thoughts. Accordingly, Ash brought suit, alleging that the School District’s unwritten bathroom policy violates Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause. In addition to filing suit, Ash moved for preliminary injunctive relief, seeking an order granting him access to the boys’ restroom. The district court granted Ash’s motion and the School District appealed.
The Court held a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX. The School District’s policy treats transgender students like Ash, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, differently. These students are disciplined under the School District’s bathroom policy if they choose to use a bathroom that conforms to their gender identity. Subsequently, Ash has met the low threshold of demonstrating a probability of success on his Equal Protection Claim.
Moreover, the School District failed to provide any evidence of how the preliminary injunction harmed it, or any of its students or parents. The harms identified by the School District are all speculative and based upon conjecture, whereas the harms to Ash are well-documented and supported by the record. The Court concluded that Ash would suffer irreparable harm absent preliminary injunctive relief and, therefore, affirmed the district court’s decision.