June 2, 2017 – On May 30, 2017, the Seventh Circuit Court of Appeals affirmed a preliminary injunction which allows a boy to use the boys’ restroom while at school. Although the Seventh Circuit’s decision is significant, it does not necessarily require school districts to generally permit transgender restroom access to students for whichever facilities they wish. First, the preliminary injunction granted by the Court only pertains to this particular student. Second, the Court emphasized the fact that “[t]his is not a case where a student has merely announced that he is a different gender. Rather, [the student] has a medically diagnosed and documented condition. Since his diagnoses, he has consistently lived in accordance with his gender identity.” For those reasons, we continue to recommend that student needs and requests be considered and addressed on a case-by-case basis, within certain parameters set by the District.

As you may recall, in Whitaker v. Kenosha Unified School District et al., the transgender high school student and his parent filed a lawsuit against the Kenosha Unified School District, alleging that the school district’s practice of not treating the student consistent with his gender identity, including the decision not to permit the student to access the boys’ restrooms, violated Title IX and the Equal Protection Clause. The student requested a preliminary and permanent injunction directing the district to permit the student to use the boys’ restrooms at school and otherwise treat the student consistent with his gender identity.

District Court Judge Pepper granted a preliminary injunction which temporarily prohibited the school district from: (1) denying the student access to the boys’ restroom; (2) enforcing any written or unwritten policy that would prevent him from using the boys’ restroom while on school property or attending school-sponsored events; (3) disciplining the student for using the boys’ restroom while on school property or attending school events; and (4) monitoring the student’s bathroom use in any way.

The school district appealed the decision, and a three-judge panel of the Seventh Circuit Court of Appeals unanimously affirmed the preliminary injunction. The Court’s decision hinged heavily on the harm that this particular student would likely suffer if he was denied access to the boys’ restroom.  The Court noted that the student had been diagnosed with Gender Dysphoria and had begun hormone replacement therapy as part of his transition. The Court found that the school district’s bathroom policy negatively impacted the student’s mental health and caused him significant psychological distress, including depression and thoughts of suicide.  In addition to the emotional harm identified by the Court, the Court found that the school district’s bathroom policy exacerbated the student’s medical condition, which rendered the student susceptible to fainting and/or seizures if dehydrated.

In order to affirm the injunction, the Court not only had to conclude that the student would likely suffer irreparable harm without the preliminary injunction, but also that the student was likely to succeed on the merits of his Title IX and/or Equal Protection Claim. The student did not need to demonstrate a likelihood of absolute success on the merits, only that his chance of success is “better than negligible” – a low threshold.  The Court found that the student demonstrated a likelihood of success on his Title IX claim, concluding that “the School District denied him access to the boys’ restroom because he is transgender.  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 went on to conclude that providing a transgender student with an alternative single-user/gender neutral bathroom is not sufficient to relieve a school district from liability, due to the increased stigmatization.

The Court also concluded that the student was likely to succeed on his Equal Protection Clause claim, finding that the School District treated transgender students, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, differently. The school district had the burden of demonstrating that its justification for its bathroom policy was not only genuine, but also “exceedingly persuasive.”  The Court found the school district had failed to provide evidence that the district, its students, or the public would be harmed as a result of allowing the student to use the boys’ restroom. While the Court recognized that the school district had a legitimate interest in protecting the privacy rights of other students in the restrooms, the Court concluded that a transgender student’s presence in the restroom provided no more risk to other students’ privacy rights than any other student present in the restroom. In addition, the Court highlighted the fact that the before the school district implemented its bathroom policy, the student had used the boys’ restroom for nearly six months without incident or complaint from another student.

In oral arguments, the school district stated that the student would be permitted to use the boys’ restroom if he provided the school with a birth certificate that designated his sex as male. For a number of reasons, however, the Court concluded that reliance upon a birth certificate’s designation of sex is an arbitrary policy that creates a different standard for transgender students. The Court therefore concluded that the student met the threshold for demonstrating a likelihood of success on the merits of his claims.

As this school year comes to an end, school districts should review their existing facilities and consider developing guidelines or procedures that will govern issues relating to transgender or gender nonconforming students. For example, the procedures should address issues such as: which District representative should be contacted by students and parents with concerns about a student’s gender identity and expression at school; the establishment and make-up of a decision-making team; what information the District may ask for before making a decision; parent communication and involvement; the scope of school board policy and involvement; and student confidentiality.

As you develop procedures and consider any pending requests from students or parents, we will continue to keep you advised of any developments in this case and other pending lawsuits involving transgender students, including the lawsuit that was filed by a group of students and parents in Palatine, Illinois. The plaintiffs in that case are asking the court (also in the Seventh Circuit) to invalidate a resolution agreement reached between the school district and the Office for Civil Rights, which allows a transgender girl access to the girls’ locker rooms. The plaintiffs argue that the privacy rights of other girls in the locker room are not protected by the agreed upon measures, and that the agreement violates Title IX, the students’ fundamental right to privacy, and the First Amendment Free Exercise of Religion Clause, among other things. Given the statutory and constitutional arguments relied upon by the plaintiffs, and the fact that this case involves a locker room instead of a bathroom, the court will have to decide issues that were not raised or decided in Whitaker v. Kenosha Unified School District et al.

If you have questions about this Legal Update or would like assistance in responding to a particular student request or reviewing or drafting procedures relating to transgender students, please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, or Gary Ruesch at gruesch@buelowvetter.com or 262-364-0263, or your Buelow Vetter attorney.