We have reported previously on the ongoing “Battle Over Bathrooms”, usually involving a school district and a student whose gender-identity differs from the gender listed on his or her birth certificate. On Tuesday of last week, the United States Court of Appeals for the Seventh Circuit, the federal appellate court covering Illinois, struck a blow in favor of the students and their parents. Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al., Case No. 16-3522 (7th Cir., May 30, 2017).
Ashton (“Ash”) Whitaker is a 17-year old student at a high school in Kenosha, Wisconsin. Although his birth certificate identifies him as a female, his sexual identification is as a boy. He had been using the boys’ restroom at the school when a teacher observed him washing his hands in the restroom and reported it to the school administration. Ash was told he could not use the boys’ restroom but could use either the girls’ restroom or a gender-neutral restroom in the school’s main office or on the other side of the school’s campus. Ash didn’t feel comfortable using the girls’ restroom and the gender-neutral bathroom was some distance from that portion of the school where his classes were located. So Ash decided to try to avoid using any restroom at all.
But Ash had been diagnosed with vasovagal syncope, a condition subjecting him to fainting and seizures if dehydrated. So Ash’s bathroom decision created medical problems for him. After the school district refused to back down, Ash and his mother filed suit, contending that the school district’s restroom policy violated Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Among other relief, Ash sought entry of a preliminary injunction to prevent enforcement of the school district’s policy, thus allowing him to use rest rooms of his choice. The U.S. district court granted the injunction and the school district appealed.
Title IX provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance…”. The school district contended that the term “sex” means biological gender and not transgender status. While the court acknowledged that there was precedent for this position in employment discrimination cases decided under Title VII of the Civil Rights Act of 1964, as amended, the court found merit in Ash’s argument on the basis of the theory of sex-stereotyping.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality of the U.S. Supreme Court found that the plaintiff’s employer had violated Title VII by discriminating against her for being “too masculine”. Earlier this year, in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 351-352 (7th Cir., 2017), the Seventh Circuit had applied this sex-stereotyping theory to find that a homosexual plaintiff could state a claim for sex-based discrimination in employment under Title VII. Not surprisingly, the court found that the same theory could be applied to a case involving bathroom choice by a transgender person.
By engaging in sex-stereotyping, the court ruled, the school district applied different rules to transgender students than applied to non-transgender students. A gender-neutral alternative such as that offered by the school, does not absolve the school of liability, the court said, “as it is the policy itself which violates the Act.”
Before we conclude that the court’s ruling applies to all bathroom/locker room situations, however, it is important to note the facts of the Whitaker case. First, Ash’s gender identification was not the product of whim; rather, Ash had been diagnosed by a therapist with a condition known as Gender Dysphoria, defined as “a marked incongruence between one’s experienced/expressed gender and assigned gender…”. Second, the harm caused by application of the policy was supported not only by Ash’s testimony but by reports from two different experts. And third, the reason for the policy advanced by the school district – protection of the privacy rights of other students – was shown to be insubstantial. Not only had there been no complaints from students about Ash’s use of the boys’ restroom before the teacher discovered him washing his hands, but, as the court pointed out, the necessary level of privacy was achieved by the mere expedient of closing the restroom stall door.
We cannot conclude, therefore, that the same ruling would apply to all programs, activities, or situations. For example, the ruling may not apply to participation in certain athletic programs, nor would it necessarily apply to situations, such as locker room use, in which the privacy rights of other students cannot be as easily protected as was the case in Whitaker. At least at this early stage of applying this newly-developing area of law, a case-by-case analysis, with appropriate legal guidance, must be utilized.