A federal appeals court on Tuesday ruled in favor of a transgender student's challenge to a Wisconsin school district's policy limiting his restroom usage — a big win for those seeking to advance transgender rights in the courts.
The decision of a unanimous three-judge panel of the US Court of Appeals for the Seventh Circuit keeps in place a district court's preliminary injunction halting enforcement of the Kenosha Unified School District's policy against the student, Ash Whitaker.
"The School District has not demonstrated that it will suffer any harm from having to comply with the district court’s preliminary injunction order," the appeals court — which hears cases from Illinois, Indiana, and Wisconsin — held.
The appeals court upheld the lower court's rulings in favor of Whitaker on both statutory and constitutional grounds, finding that he is likely to succeed on his claim that he is protected from discrimination under the sex discrimination ban in Title IX of the Education Amendments of 1972 because he is transgender and that the school district's policy violates the Equal Protection Clause of the Fourteenth Amendment.
The broad ruling in favor of transgender rights comes even as the Trump administration pulled back an Obama-era policy that pressed for recognition of transgender rights under existing civil rights laws.
The decision to withdraw the pro-transgender Title IX guidance came in late February. It, in turn, led the US Supreme Court to send back the case of Gavin Grimm, a Virginia student who had brought a similar lawsuit, to the lower courts. Although the justices had agreed back in 2016 to hear the case, the appeals court decision in Grimm's case had deferred to the Obama-era guidance on Title IX. After that guidance was withdrawn, the Supreme Court sent the case back to the lower courts so other arguments could be considered.
In the Seventh Circuit's decision in Whitaker's case, however, Judge Ann Claire Williams addressed Title IX independent of administration guidance on Tuesday.
"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," she wrote for the panel.
Regarding the constitutional argument, she noted that "the School District argues that since it treats all boys and girls the same, it does not violate the Equal Protection Clause."
"This is untrue," Williams wrote for the court. "Rather, the School District treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently."
Because of that, Williams explained the school district would have to show "exceedingly persuasive" reasons justifying the policy.
"This burden has not been met here," she wrote.
Whitaker and his mother, Melissa Whitaker, are represented by the Transgender Law Center and co-counsel Relman, Dane & Colfax PLLC.
Notably, the court also held that the school district's arguments to advance its claimed concerns about privacy are "based upon sheer conjecture and abstraction."
Specifically, Williams wrote, "The School District has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents. The harms identified by the School District are all speculative and based upon conjecture, whereas the harms to Ash are well‐documented and supported by the record."
Chief Judge Diane Wood and Judge Ilana Rovner also heard the case.