U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Transgender Teen May Use Boys' Bathroom, Court Rules

A federal appeals court affirmed an injunction allowing a 17-year-old transgender student to use the boys' bathroom at school.

The U.S. Seventh Circuit Court of Appeals said Ashton Whitaker, who was born female, will likely prevail on his claim of sexual stereotyping against his school district. Whitaker said the district denied him access to the bathroom in violation of anti-discrimination laws.

The Kenosha Unified School District said it was not sexual stereotyping to require a biological female to use the girls' bathroom, but the appeals court disagreed in Whitaker v. Kenosha Unified School District.

"By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth," Judge Ann Claire Williams wrote for the court, adding: "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."

Transition to Litigation

"Ash" Whitaker began the transition to become a male when she was in eighth grade. She cut her hair, began dressing as a boy and began referring to herself as a male.

When he started high school, Whitaker openly identified himself as male and told his teachers to refer to him accordingly. He began hormone replacement therapy and filed a petition to change his name to Ashton Whitaker.

The problem with the bathrooms started in his sophomore year, when he asked the school for permission to use the boys' bathroom. The school denied the request, but said he could use a gender-neutral bathroom at the office.

Whitaker chose not to use the gender-neutral bathroom, and started using the boys' bathrooms instead. A teacher caught him, and he was removed from class for the violation.

Injunction Granted

Whitaker and his mother obtained a preliminary injunction that allowed him to use the boys' bathroom, and the district appealed. Administrators argued that they were protecting the privacy rights of "all 22,160 students" in the district.

The appeals court was not convinced, and said that a transgender plaintiff can state a claim under Title VII for sex discrimination on the basis of a sexual stereotyping. The court said Whitaker had suffered irreparably because he was singled out, and had even contemplated suicide.

"Ash learned in May 2016 that school administrators had considered instructing its guidance counselors to distribute bright green wristbands to Ash and other transgender students so that their bathroom usage could be monitored more easily," the court said.

The school district has denied the allegation. It is deciding whether to appeal to the Supreme Court.

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