June 6, 2017 – A transgender student in Kenosha can use the boys’ bathroom for the remainder of the school year, as a federal appeals court has ruled the student demonstrated a likelihood of success on the merits of his case against the school district.

Ashton Whitaker (Ash) is a 17-year old senior at George Nelson Tremper High School. Born a female, Ash identifies as a male, but the school district would not allow him to enter the boys’ bathroom, citing the privacy concerns and rights of male classmates.

Ash and his mother filed suit, alleging the Kenosha School District’s unwritten bathroom policy violates Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Ash also sought an order for injunctive relief that would grant access to the boys’ bathroom his senior year.

The U.S. Court of Appeals for the Eastern District of Wisconsin granted Ash’s motion. And in Whitaker v. Kenosha Unified School District, No. 16-3522 (May 30, 2017), a three-judge panel for the Seventh Circuit Court of Appeals affirmed the district court.

“Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex-stereotyping theory,” wrote Judge Ann Claire Williams. “Further, because the policy’s classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim.”

The panel rejected the school district’s claim that the privacy interests of the student population outweigh harms to Ash, who has alleged that his exclusion from the boys’ bathroom has caused both physical and emotional harm, including suicidal thoughts.

Ash says he was limiting water intake to avoid using the girls’ bathroom at school, exacerbating a condition that can cause seizures if he’s dehydrated. The panel ruled that these physical and emotional harms outweigh any school district concerns.

“The School District has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents,” Judge Williams explained. “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.”

School Said Surgical Procedure Required

Before filing the lawsuit, Ash and his mother met with an assistant principal who said Ash was restricted to the girls’ bathroom or a gender-neutral bathroom in the main office, unless his school records were changed to note that he was “male.” Ash had been using the boys’ bathroom without incident until a teacher informed administration.

Ash submitted two letters from his pediatrician, identifying him as a transgender boy. The doctor recommended that Ash be allowed to use the boys’ bathroom.

But the school responded that Ash would need a surgical procedure to change his anatomy in order to change his gender designation on school records.

The school never documented that policy in writing, the panel noted. Although he feared that disciplinary sanctions would impact his college prospects, Ash continued using the boys’ bathroom. The school began monitoring him through a security guard to ensure he would not use the boys’ bathroom, and pulled him from class to address violations.

The school district also provided Ash with access to two single-user, gender-neutral bathrooms that were locked, and provided him with the only key. But they were on the other side of campus from his classes. Ash again withheld from use of any bathroom.

Ash filed the lawsuit just before the start of his senior year, in August 2016. The district court enjoined the school from denying Ash access to the boys’ bathrooms. Although the school year is almost concluded, the Seventh Circuit has upheld that ruling.

Student Met Burden for Preliminary Injunction

The panel ruled that Ash showed that he will suffer irreparable harm absent injunctive relief, inadequate remedies at law exist, and he has a reasonable likelihood of success on the merits – the test for determining whether an injunction should be granted.

Under Title IX, schools that receive federal funding violate the law if they engage in gender-based discrimination, including different treatment on the basis of sex.

The school district argues that Ash cannot state a claim under Title IX, because transgender status, rather than a status as “man” or “woman,” cannot be used as a basis for a sex discrimination. But the panel said the claim is not foreclosed.

“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,” Judge Williams wrote.

On the Equal Protection claim, the panel ruled that Ash showed a likelihood of success because the school cannot overcome the heightened scrutiny that applies to sex-based classifications.

The school district must show that the classification that treats Ash differently than other students “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

The panel concluded that Ash demonstrated the likelihood of success on the Equal Protection claim, explaining how the school district’s bathroom policy as applied to transgender students does not meet the burden established by heightened scrutiny.

“[T]his court agrees with the district court that the School District’s privacy arguments are insufficient to establish an exceedingly persuasive justification for the classification,” Judge Williams wrote.

Case Will Continue in District Court

The district court also denied the school district’s motion to dismiss the case. The panel noted that an order denying a motion to dismiss is not final and is not appealable.

Nevertheless, the school district urged the appeals court to assert pendent appellate jurisdiction and consider the district court’s denial of the motion to dismiss.

“We decline to do so,” wrote Judge Williams, noting that pendent appellate jurisdiction is discretionary and has been “sharply restricted” by the U.S. Supreme Court.

Pendent appellate jurisdiction, the panel noted, "allows for review of an ‘otherwise unappealable interlocutory order if it is inextricably intertwined with an appealable one.’”

Judge Williams explained that the district court’s orders on dismissal and preliminary injunction, while they overlapped, were not inextricably intertwined.

“Invoking pendent jurisdiction simply because of this overlap would essentially convert a motion for preliminary injunctive relief into a motion to dismiss, which would raise the threshold showing a plaintiff must make before receiving injunctive relief,” she wrote.