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Thursday, June 1, 2017

7th Circuit Rules in Favor of Transgender H.S. Student

On May 30th, the Seventh Circuit Court of Appeals ruled in favor of a transgender teen who challenged a Wisconsin school district's policy denying the teen access to the boys' restroom. Whitaker v. Kenosha Unified S.D. #1 (7th Cir. May 30, 2017).

The plaintiff, a 17 year old high school senior, had requested permission from the school district to use the boys' restroom. The school district denied the student's request, claiming that it would invade the privacy rights of male classmates. The student filed suit against the school district, alleging that its bathroom policy violated Title 9 and the Equal Protection Clause of the U.S. Constitution.  The student also sought preliminary injunctive relief from the court to allow the student access while the case was pending. The district court granted injunctive relief to the student, and the school district appealed to the 7th Circuit. 

On appeal, the 7th Circuit reviewed the facts of the case. The Court noted that the student's birth certificate identified the teen as a female, but at 13, began to openly identify as a boy. A year after transitioning, the student requested permission to use the boys' restroom, but the school district decided only to allow use of either the girls' restroom or a gender-neutral restroom in the main office. 

In considering the school's appeal, the Court first found that the student was likely to suffer irreparable harm from the district's bathroom policy because (1) use of the boys' restroom was, according to expert opinions, integral to the student's transition and emotional well-being and (2) the district's alternative of  using a gender-neutral restroom was not adequate because it was far from the student's classrooms and invited attention from classmates. 

The Court also found that the student was likely to succeed on the Title 9 sex discrimination claim because the school district's bathroom policy subjected the transgender student to "different rules, sanctions, and treatment than non-transgender students" and the district's provision of a gender-neutral alternative was not sufficient to relieve the district from liability under Title 9, particularly where the student was the only one provided access. 

The Court rejected the school district's argument that the purpose of the policy was to protect other students' privacy rights, finding that 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." 

Moreover, the Court questioned the school district's argument that the true indicator of a person's gender is the identifier on the individual's birth certificate, noting that in Wisconsin a birth certificate cannot be changed unless the individual has completed a surgical reassignment. 

Finally, the Court found that the school had not demonstrated it would suffer any harm from having to comply with the court's preliminary injunction order, nor did the district provide any evidence that students complained about the student's use of the boys' restroom, or that it violated their privacy. 

Post Authored by Julie Tappendorf


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