New York State School Boards Association

Another bathroom access lawsuit reaches federal circuit court level

by Jeffrey Mongelli

On Board Online • July 3, 2017

By Jeffrey Mongelli
Senior Staff Counsel

Pending the outcome of a lawsuit, a Wisconsin transgender boy may use the boys' bathroom in his high school notwithstanding the school's unwritten policy to the contrary.

That was the ruling by the Seventh Circuit U.S. Court of Appeals in Whitaker v. Kenosha Unified School District.

The case joins G.G. v. Gloucester, currently pending before the Fourth Circuit, as a significant court ruling regarding bathroom access by transgender students.

Students claim protection under Title IX, U.S. Constitution

In both cases, federal courts have explored the rights of transgender students in the context of Title IX of the Education Amendments of 1972, a federal statute that prohibits discrimination "on the basis of sex."

In Gloucester, the Fourth Circuit focused primarily on a Title IX regulation that permits separate toilet facilities on the basis of sex. Because the court found that particular regulation to be ambiguous, it gave deference to a guidance document issued by the Obama administration indicating that a school must generally treat transgender students consistent with their gender identity.

During the appeal of that case, the relevant guidance document previously issued by the U.S. Department of Education's Office of Civil Rights was withdrawn and rescinded by the Trump administration. As a result, the U.S. Supreme Court sent the Gloucester case back to the Fourth Circuit for further consideration.

Like the student in Gloucester, the student in Kenosha claimed the school district discriminated against him in violation of both Title IX and the Equal Protection Clause of the U.S. Constitution.

In Kenosha, a 17-year-old high school transgender boy was denied access to use the boys' restroom and was told to use either the girls' restroom or a gender-neutral restroom in the main office of the school. The school district's reason for the denial was that the student was listed as a female in the school's official records. In order to change these records, the school required "legal or medical documentation."

The student's pediatrician submitted letters identifying him as a transgender boy with the recommendation that he be permitted to use male-designated facilities. The school district deemed these letters insufficient and, without explanation, concluded that the student would be required to undergo surgical transition in order to be permitted to use the boys' restroom.

The district never provided written documentation indicating when this policy went into effect, what the policy was, or how one could change his/her status under the policy.

Notwithstanding the school's directives, the student continued to use the boys' restroom. On occasion, he was removed from class to discuss his violation of the unwritten policy. The school provided the student with an additional option of using two single-user, gender-neutral restrooms. The student, however, avoided those restrooms due to their locations and out of concern that he would be stigmatized.

As part of his lawsuit, the student sought a court order enjoining the enforcement of the school district's policy while the court case was pending. A federal district judge in Wisconsin granted the student's motion for injunctive relief in part by prohibiting the school district from: (1) denying the student access to the boys' restroom; (2) enforcing any written or unwritten policy against the student that would prevent him from using the boys' restroom either on school property or while attending school-sponsored events; (3) disciplining the student for using the boys' restroom; and (4) monitoring or surveilling his restroom use.

The district appealed to the Seventh Circuit, which affirmed the district court's order. This permits the student to use the boys' restroom while the district court prepares a ruling on the merits of the case.

Court finds student likely to suffer irreparable harm

In reviewing the district court's decision, the Seventh Circuit noted that the student presented expert opinion that using the boys' restroom is integral to the student's transition and emotional well-being. A psychologist noted that the student had thoughts of suicide and that his depression was exacerbated when he met with school officials regarding his bathroom usage. She concluded that the district's actions were "directly causing significant psychological distress and [placing the student] at risk for experiencing life-long diminished well-being and life-functioning."

The court also noted that the district exacerbated the harm by relegating him to a separate bathroom which further stigmatized him, caused him to miss class time or caused him to avoid the use of the restroom at the expense of his health.

The court determined that the prospective harm alleged by the student - the contemplation of suicide - could not be compensated by a monetary award. In addition, no adequate remedy could prevent "life-long diminished well-being and life-functioning."

Student's success deemed likely on Title IX claim

Significantly, the Seventh Circuit concluded that transgender students may bring sex-discrimination claims based on a theory of sex-stereotyping - that is, discrimination based on a failure to conform to stereotypical gender norms.

The court noted: "By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth."

The court concluded that the student can demonstrate a likelihood of success on the merits of his Title IX claim. "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 discounted the school district's attempt to provide a gender-neutral alternative, since it was the actual policy of exclusion that violated Title IX. Also, these were not "true alternatives" because of their location from the student's classrooms and because of increased stigma felt by the student. The court also found it noteworthy that this was not the situation where the student simply announced a different gender. Rather, the student had a "medically diagnosed and documented condition."

Student's success deemed likely on 14th Amendment claim

Furthermore, the Seventh Circuit affirmed the district court's finding that the student demonstrated an adequate probability of success regarding his claim that the district's actions violated his right to equal protection under the 14th Amendment.

The school district attempted to defend its policy based on the need to protect the privacy rights of its students. While the court recognized that the district had a "legitimate interest in ensuring bathroom privacy rights are protected," the court found the district's argument based "upon sheer conjecture and abstraction," especially since the school district had not received any complaints from other students regarding the student's use of the boys' restroom.

The court said:

A transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.

This decision is an important development in the continued dispute over transgender students' rights to access school facilities based on their gender identity. It, however, remains to be seen how other circuits - and potentially the U.S. Supreme Court - will view this issue.

On June 6, 2017, the Office of Civil Rights at the U.S. Department of Education sent to its regional directors new guidance concerning the evaluation and investigation of complaints involving alleged violations of transgender student rights under Title IX. This document is available at: .

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