Historic: 7th Circuit Court of Appeals Affirms Dignity for Transgender Student

By Adam Polaski • May 30, 2017 • 3:31 pm

Today the United States Court of Appeals for the 7th Circuit issued an opinion affirming a preliminary injunction in the case of Whitaker v. Kenosha Unified School District. In the ruling, a 3-judge panel of the federal appellate court affirmed that the school district must allow Ashton Whitaker, a transgender boy in Wisconsin, to use the boys’ restroom. The decision in this case, filed by the Transgender Law Center, ensures that an order requiring the school district to respect Ash’s gender identity will remain in place. The 7th Circuit Court of Appeals has jurisdiction over Wisconsin, Indiana, and Illinois.

The court’s opinion makes the 7th Circuit the highest court ever to decisively find that Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex, extends to transgender students. The court writes: “By definition, a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was assigned at birth. …  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 panel also found that the school district’s treatment of Ash violates the Equal Protection Clause of the United States Constitution.

In September 2016, U.S. District Judge Pamela Pepper ruled in favor of Ash, issuing the preliminary injunction upheld today by the 7th Circuit.

The decision from the 7th Circuit Court of Appeals is the latest in a growing consensus from judges across the country. In December 2016, the U.S. Court of Appeals for the 6th Circuit also kept in place a similar preliminary injunction in a similar case involving a transgender student. That court, too, found that if the plaintiff were to be restricted from using the restroom in line with her gender identity, she would face “irreparable harm.” And last summer the U.S. Court of Appeals for the 4th Circuit sided with Gavin Grimm, a transgender boy in Virginia whose case involving restroom access was briefed before the U.S. Supreme Court until it was remanded to the lower court following President Trump rescinding guidance on how public schools should treat transgender students.

Freedom for All Americans Acting CEO and President of Strategy, Kasey Suffredini, explained:

“We are pleased to see the 7th Circuit join the majority of Americans who see denying transgender students access to restrooms for exactly what it is – discrimination. This is a victory for Ash, but transgender individuals like him lack comprehensive, explicit protections from discrimination in all areas of life in Wisconsin and more than 30 other states. The patchwork of differing laws and policies across the country is unsustainable. Ash’s story underscores the need for clear laws protecting transgender young people and adults from discrimination, and we applaud the 7th Circuit’s step in the right direction affirming the dignity of transgender students at school.”

Ash Whitaker, represented by the Transgender Law Center, said today:

“I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school. 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. … 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.”

The court wrote:

Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex‐stereotyping theory. Further, because the policy’s classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim. The School District has not provided a genuine and exceedingly persuasive justification for the classification.

Read the ruling from Equality Case Files here.

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