June 6, 2017
Court Affirmed Relief for Transgender Student's Access to School Bathrooms in Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al.
The Seventh Circuit Court of Appeals recently affirmed the grant of preliminary injunctive relief in a case involving a transgender student’s access to school bathroom facilities compatible with the student’s gender identity. In an appeal from the United States District Court for the Eastern District of Wisconsin, the Seventh Circuit upheld the District Court’s ruling that the student, Whitaker, was entitled to injunctive relief allowing access to the boy’s bathroom. The Seventh Circuit affirmed the District Court’s finding that Whitaker had sufficiently demonstrated a likelihood of success on the merits of the asserted Title IX claim based upon a sex-stereotyping theory. The Seventh Circuit reasoned that,
“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 further reasoned that, “The School District’s policy also subjects [Whitaker], as a transgender student, to different rules, sanctions, and treatment than non-transgender students, in violation of Title IX.” The Seventh Circuit further held that because the school’s bathroom policy classified students based on sex, Whitaker sufficiently demonstrated that a heightened scrutiny analysis rather than a rational basis analysis should apply to the asserted Equal Protection claim. The court did not go so far as to assert that transgender status is per se entitled to a heightened scrutiny analysis, but reasoned that “sex-based classification is subject to heightened scrutiny.”
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