Government Entities – Case Law Update, June 2017
Whitaker v. Kenosha Unified School District
Paving the way to a possible Supreme Court decision on the transgender public accommodations, the Seventh Circuit recently ruled that requiring a transgender student to use a “single sex” bathroom, rather than one that conforms to his gender identity, violates Title IX.
The Kenosha, Wisconsin Unified School District refused to allow Ashton Whitaker, a 17-year old senior, the right to use the boys’ bathroom at his high school. Whitaker, a transgender student who identifies as a male, challenged the prohibition as a violation of Title IX and an infringement of his Equal Protection rights under the Fourteenth Amendment, and sought an injunction against the District’s prohibition. The district court granted the injunction and the District appealed.
The Seventh Circuit affirmed. It found that Whitaker would suffer irreparable harm, lacked any sufficient remedy at law, and was likely to succeed on the merits. The court concluded that Whitaker’s assertion of suicidal thoughts was sufficient evidence of severe mental and emotional harm. It also concluded that monetary damages would constitute an adequate recompense for Whitaker’s situation.
The court spent significant time explaining its rationale for finding that Whitaker would likely win on the merits, citing Title VII cases going back to the 1989 decision in Price Waterhouse v. Hopkins that prohibited sexual stereotyping generally, and a line of circuit cases supporting the view that sexual stereotyping is equally prohibited when applied to transgender people. The court found that making distinctions based on gender identity was also proscribed under Title IX.
Of further importance, the court found Whitaker had “met the low threshold of demonstrating a probability of success on his Equal Protection Claim.” If that issue reaches the Supreme Court, it could have wider implications for transgender public accommodations beyond Title VII and Title IV, which has thus far been the focus of such cases.