The extension of civil rights protections to transgender and gender non-conforming individuals is rapidly evolving.  These issues are playing out in schools across the country, and a recent Seventh Circuit decision seems to suggest that transgender students will be afforded Title IX and Fourteenth Amendment protections.

In Whitaker v. Kenosha Unified School Dist. No. 1., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017) the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex. 

Factual Background

A female-to-male transgender, high school student brought a lawsuit against the a school district alleging that the school district’s unwritten bathroom policy violates Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment. The student, who was the only openly transgender student at his high school, was told that he could not use the boys’ restroom and was reprimanded by school administrators for his bathroom usage. The School District informed the student and his mother that, pursuant to its policy, the student would only be permitted to use the boys’ restroom if his school records were changed to designate his sex as male, but failed to provide clear instructions on how to do so.

Court’s Decision

In addition to filling a suit, the student asked the court to allow him to use the boys’ restroom. The district court granted the student’s request and ordered that the school district not (1) deny him access to the boys’ restroom; (2) enforce any written or unwritten bathroom policy against him; (3) discipline him for using the boys’ restroom while on school property or while attending school-sponsored events; or (4) monitor his restroom use in any way.

The school district appealed the District Court’s order. However, the Seventh Circuit affirmed the District Court’s decision.  In its decision, the Seventh Circuit highlighted that the school district never provided a written copy of or established the existence of the policy for which it used to prohibit the student from using the boys’ restroom. In response to the School District’s argument that its policy is in place to protect the privacy rights of other students, the Seventh Circuit noted that the student used the boys’ restroom for nearly six months without incident or complaint from other students. The Court further stated that only after a teacher noticed the student’s use of the boys’ restroom, his bathroom usage “once more became an issue in the School District’s eyes.”

What This Means to You

Considering this recent decision, you should take the time to analyze (1) whether or not your school has a formal, written bathroom policy, (2) how any such policy is enforced, and more importantly, (3) whether your school has received any complaints from students about transgender students’ bathroom usage.