Appeals Court: Discrimination Against Trans Students Is Likely Illegal

Melissa Whitaker and Ash Whitaker.

Transgender Law Center

In an important decision for transgender rights, the influential 7th U.S. Circuit Court of Appeals affirmed that a transgender student in Wisconsin, Ash Whitaker, is likely to prevail in his suit seeking access to the school restrooms corresponding to his gender identity. The decision in Whitaker v. Kenosha Unified School District on Tuesday illustrates that transgender students are protected from discrimination under both federal civil rights laws and the Constitution. This, notwithstanding the Trump administration’s withdrawal of guidance protecting transgender students under Title IX and the Supreme Court’s corresponding unfortunate reluctance to decide the Gavin Grimm case. The 7th Circuit’s decision protecting transgender students rested on two independent grounds.

First, irrespective of the fact that the Trump administration has withdrawn guidance interpreting Title IX of the Education Amendments Act of 1972 to protect transgender students, the 7th Circuit held that the statutory text of Title IX, as interpreted by the Supreme Court, protects transgender students from discrimination. According to the court, “[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 court’s reasoning built on a long line of authority holding that sex-stereotyping—that is, treating someone differently because of their perceived failure to conform to dominate notions of what it means to be sufficiently male or female—is a form of impermissible sex discrimination. And the decision should lend support to the case of Gloucester County School Board v. Gavin Grimm, which is back before the 4th Circuit.

Second, the court held that discrimination against transgender individuals is a form of sex discrimination under the Equal Protection Clause of the Constitution, meaning that discrimination against trans people is subject to a heightened level of scrutiny. In order to justify classifying people on sex-based categories, the government therefore needs to demonstrate that “the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” As the 7th Circuit reasoned, treating transgender students differently and disciplining them for using bathrooms that correspond to their gender identity is a sex-based classification, subjecting the school’s policy to heightened scrutiny.

In an attempt to justify its differential treatment of transgender students and satisfy heightened scrutiny, the school district argued that it was attempting to protect the privacy rights of other students. The court easily rejected this purported justification, holding that “the School District’s privacy argument is based upon sheer conjecture and abstraction.” As in several other cases involving transgender students, Whitaker used the boys’ restroom for several months “without incident or complaint from another student.”

Moreover, the court noted that the policy of forbidding trans students from using restrooms corresponding to their gender identity “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.” As the court rightly concluded, the presence of transgender students does not pose an increased threat of privacy to any other students. The court refused to let unsubstantiated fears about transgender people overcome common sense and decency. Instead, the court recognized that refusing to permit Whitaker to use the restroom corresponding to his male gender identity further stigmatized him and marked him as “different.”

The 7th Circuit’s decision affirming the grant of a preliminary injunction in favor of Whitaker is just the latest in a growing line of cases recognizing that treating transgender individuals differently is a form of actionable sex discrimination under federal civil rights statutes and the Constitution. And it provides an important counterpoint and reason for optimism in the face of reports that the Trump administration will continue to roll back Obama-era civil rights protections. As with so many issues, Trump is not the sole decider, and the courts are continuing to fulfill their constitutional role of saying what the law is—in this case, the law is that discrimination against transgender individuals is impermissible.

Disclosure: I joined other scholars in submitting an amicus brief to the 7th Circuit in this case.