A federal appeals court ruled on Tuesday that a transgender high school student in Wisconsin has both a constitutional and statutory right to use the bathroom that aligns with his gender identity.
The ruling, by the U.S. Court of Appeals for 7th Circuit in Chicago, is the first of its kind and could open the door for other courts — and eventually, the U.S. Supreme Court — to find that both the Constitution and federal law protect trans students from school-based discrimination.
The court described the ordeal of Ashton "Ash" Whitaker, the teen at the center of the case, as that of "a 17-year‐old high school senior who has what would seem like a simple request: to use the boys' restroom while at school."
With his mother's support, Whitaker had sued his school district, the Kenosha Unified School District, after he was barred from using the facilities other boys used and was relegated instead to the girls' restroom or a gender-neutral bathroom in the main office.
This singling out, Whitaker's lawsuit maintained, violated both the constitutional guarantee of equality and Title IX of the Education Amendments of 1972, which forbids sex discrimination by school entities receiving federal funding. The 7th Circuit agreed with both claims and upheld an injunction that directed the school to accommodate the student.
"Here, the School District's policy cannot be stated without referencing sex, as the School District decides which bathroom a student may use based upon the sex listed on the student's birth certificate," wrote U.S. Circuit Judge Ann Claire Williams for a three-judge panel. "This policy is inherently based upon a sex‐classification and heightened review applies."
That language matters, because it could prove persuasive to other appeals courts considering whether existing law treats gender identity as a protected category in the school context, said Joe Wardenski, a member of the legal team representing Whitaker.
The ruling "is the first federal appeals court to decisively hold that that both Title IX and the 14th Amendment provide protections to transgender students," Wardenski said.
As timing would have it, the 7th Circuit — which covers the states of Wisconsin, Illinois and Indiana — heard oral arguments in the dispute only weeks after the Supreme Court punted on the case of Gavin Grimm, a Virginia teen who was hoping to convince the justices that federal law as interpreted by the Obama administration already forbids school officials from discriminating against transgender students.
The election of President Donald Trump, however, changed the legal landscape, and both the departments of Justice and Education — which had previously supported Grimm's case and were responsible for pro-trans directives issued nationwide — rolled back the prior administration's view of what accommodations Title IX requires.
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. U.S. Circuit Judge Ann Claire Williams
That change in positions led the Supreme Court to duck the issue altogether, leaving plaintiffs like Whitaker and Grimm to argue that Title IX itself — which doesn't expressly cover gender identity — nonetheless covers claims of "sex" stereotyping against trans students.
The 7th Circuit embraced that approach in Tuesday's ruling, suggesting that because "a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was assigned at birth," it's unlawful to stigmatize a student based those stereotypes.
"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," Judge Williams wrote.
The ruling in favor of Whitaker arrives less than two months since the full 7th Circuit ruled in another watershed case that federal employment law forbids discrimination against gays and lesbians in the workplace.