For years, California law has required school districts to allow a student to use restroom facilities consistent with his or her gender identity no matter what gender is listed on the pupil’s records. However, a case decided earlier this week by a federal appeals court serves as a reminder that school district bathroom policies and practices are also subject to challenges in federal court based on Title IX and Equal Protection claims.
 
On May 30, the U.S. Court of Appeals for the Seventh Circuit upheld a preliminary injunction prohibiting a Wisconsin school district from:

1. denying a transgender student access to the restroom corresponding to his gender identity at school,
2. enforcing any written or unwritten policy against the student 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 and
4. monitoring or surveilling his restroom use in any way.

In Ashton Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al., transgender student “Ash” Whitaker, who identifies as a boy but is biologically female, alleged that the Kenosha Unified School District violated his rights under Title IX of the Education Amendments Act of 1972. He claims the District was wrong to require him to use either the girls’ restroom or gender-neutral facilities while prohibiting him from using the boys’ facilities. Ash also alleged that the policy violated his rights under the Fourteenth Amendment’s Equal Protection Clause. Ash asked the court for a preliminary injunction granting him access to the boys’ restrooms for his senior year of high school pending resolution of the case on its merits. To be granted a preliminary injunction, a party must show, among other things, that he or she will suffer irreparable harm without the injunction and that he or she has a reasonable likelihood of success on the merits of the case.

On the issue of irreparable harm, the Seventh Circuit determined that Ash had successfully demonstrated, through expert opinion, that he would suffer irreparable psychological and emotional harm without the injunction.
 
On the issue of whether the student was likely to succeed on the merits of the case, the court determined that he was in fact likely to prevail. The court rejected the School District’s arguments that Ash’s transgender status is neither a protected class under Title IX nor is it entitled to heightened scrutiny under the U.S. Constitution. Instead, the Seventh Circuit held that Ash had adequately demonstrated a likelihood of success on his Title IX claim under a “sex-stereotyping theory.” Additionally, the court determined that heightened scrutiny applied to the Equal Protection Clause claim because the School District’s policy regarding Ash’s access to the boys’ bathrooms was based on sex.
 
In particular, the Seventh Circuit found that a policy requiring 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. Such policy also subjected Ash, according to the court, to different treatment than non-gender students. Further, the court found that the gender-neutral bathroom alternatives were not “true alternatives” because they were distant from Ash’s classrooms and increased his stigmatization. The court held that the policy violated Title IX, noting that Ash’s gender identity was not simply the result of a choice or “unilateral declaration,” but related to his medically diagnosed and documented condition known as Gender Dysphoria.
 
The Seventh Circuit also determined that the School District’s policy was arbitrary and based on sex classifications, thus requiring heightened scrutiny in its assessment. The court concluded that the different treatment of Ash compared to non-transgender students was not outweighed by an exceedingly persuasive justification, including the privacy rights of other non-transgender students.

[View source.]