A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit has upheld a preliminary injunction that bars a Wisconsin school from denying a transgender student access to the boys’ restroom, disciplining him for using the boys’ restroom, or monitoring his restroom use in any way. The decision came this week in Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al.
Ashton (“Ash”) Whitaker is a 17-year-old high school senior who is also a transgender male. He had asked to use the boys’ restroom while in school but the Kenosha Unified School District (“District”) denied his request, citing concerns about the privacy rights of other male students. Ash has filed a lawsuit alleging that the District’s policy violates Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause.
Ash filed a motion for a preliminary injunction seeking to order the District to allow him to use the boys’ restroom while his lawsuit is pending. His motion asserted that the District’s decision to deny him access to the boys’ restroom caused him harm because his attempts to avoid using the restroom exacerbated his medical condition – vasovagal syncope, which makes him susceptible to fainting and/or seizures if he becomes dehydrated. Ash also contended that the denial caused him educational and emotional harm.
A district court granted Ash’s request for a preliminary injunction in September 2016, and the District appealed that decision to the Seventh Circuit.
In determining whether a preliminary injunction is proper, courts look at 1) whether the party seeking the preliminary injunction will suffer irreparable harm without it; 2) whether inadequate remedies at law exist; and 3) whether the party seeking the preliminary injunction has a reasonable likelihood of success on the merits of his claim. After those three criteria are met, the court engages in a balancing analysis to determine who would suffer the most harm.
In finding in favor of Ash, the Seventh Circuit found that the District failed to provide any evidence of how the preliminary injunction will cause harm to the District or other students. “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,” the Court found. The Court dismissed the District’s argument that Ash could use a gender-neutral restroom, where he was the only student allowed access. The court held, “This action further stigmatized Ash, indicating that he was ‘different’ because he was a transgender boy.”
In reaching its decision, the Seventh Circuit also found that Ash has sufficiently demonstrated a likelihood of success in his Title IX and Equal Protection claims under a sex-stereotyping theory. Further, the Court found that any monetary award available to Ash if his lawsuit is ultimately successful would not be an adequate remedy for the harm he would suffer in the interim.
The full Seventh Circuit opinion is available at http://bit.ly/2qzhrto
Should you have any questions about this case and how it may impact your current policies, procedures, or practices with respect to transgender students, please do not hesitate to contact us by e-mail or phone (630) 313-4750.