KingSpry Transgender Students Protected Class Under Title IX

7th Circuit Rules Transgender Students Protected Class Under Title IX and Equal Protection Clause

Photo of attorney Brian J. Taylor

Posted on June 7th, 2017
by Brian J. Taylor

In an opinion decided just last week, the 7th Circuit Court of Appeals joined two other circuits (the 6th and the 11th) in holding that transgender status is indeed a protected class under Title IX and the Equal Protection Clause thus broadening the protection for transgendered students throughout the United States.

Background of the Case

In Whitaker v. Kenosha Unified School District, the District sought to have a transgender boy use either the girls’ bathroom or an alternative, but inconvenient, gender neutral bathroom some distance away from where his classes were scheduled.  No other students complained and there was no written school policy regarding bathroom usage.

The student grew fearful that he would be disciplined, impairing his chances of getting into college if he did not comply.  As a result, he began to restrict his water intake rather than cope with the school imposed restriction and eventually developed depression, anxiety, thoughts of suicide, and vasovagal syncope, which rendered him more susceptible to dehydration related fainting and/or seizures.  The district went so far as to use the school’s security guards to monitor his restroom usage.

The student eventually filed for a preliminary injunction seeking to enjoin enforcement of the restriction.  Granting of preliminary injunction relief is a two-step inquiry requiring that a Petitioner prove that: 1) they will suffer irreparable harm absent the grant; 2) there are no adequate remedies at law; and 3) there is a reasonable likelihood of success on the merits.  If the Petitioner makes a successful showing then the court employs a balancing analysis to determine the balance of harm to other parties or if the pubic interest outweighs that of the Petitioner.

The Court’s Ruling

In Whitaker, the student (Petitioner) presented expert psychological testimony that he suffered significant emotional distress and was at risk for experiencing life-long diminished well-being and life functionality.  The court found that the choice of a bathroom was an unenviable choice that would further stigmatize him and found that his feelings of depression and anxiety were not self-inflicted.  Next, the Court found that none of Whitaker’s injuries could be compensated with money.  Lastly, the Court found a likelihood of success on the merits under both Title IX and the Equal Protection Clause of the 14th Amendment.

With respect to Title IX, the Court held that neither the statute or its regulations defined terms such as “sex” or “biological” and that if they looked to previous Title IX cases, though there is a split in the case law, they were going to side with the line of cases following the seminal case of Waterhouse v. Hopkins, which embraced a broader view and recognized sexual stereotyping claims.

Because Whitaker had established that the gender-neutral alternatives were not true alternatives, the court held that the Plaintiff had sufficiently stated a sex stereotyping claim under Title IX.

Likewise, the Court held that sexual stereotyping is subject to heightened scrutiny in an Equal Protection analysis and that as with any state actor, the burden rests with the school district to demonstrate a justification for its differential treatment that was “exceedingly persuasive”.

The Court quickly held that sociological and empirical evidence in the literature, as well as the record in Whitaker, showed evidence of the existence of sex stereotyping. Finally, the Court found that, under the facts presented, the balance of harm favored the student in that the district failed to demonstrate that it would suffer any harm from complying with the injunction and nor had it established that the public as a whole would suffer, particularly in light of the fact that the student had used the men’s bathroom for nearly six months without incident.

Bottom Line for Schools

The take away from Whitaker is that a split in the Courts regarding the recognition of sex-stereotyping continues and there are likely to be more district courts that fall in line behind  Whitaker until the Supreme Court gives its final opinion on the issue.  As Whitaker shows, school districts should be careful in crafting their bathroom policies.

If you have a question about the issues discussed in this article, please contact your legal counsel or one of the Education Law Practice Group attorneys at KingSpry.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.