Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education
2017 U.S. App. LEXIS 9362
| 7th Cir. | 2017Background
- Ash Whitaker, a 17-year-old transgender male high‑school senior in Kenosha Unified School District, sued after the district barred him from using boys’ restrooms and required use of girls’ or distant single‑user gender‑neutral restrooms.
- Ash has a diagnosis of Gender Dysphoria, has begun hormone therapy, legally changed his name, and consistently lives as a male; denial of restroom access caused medical (vasovagal syncope), educational, and severe psychological harms.
- The School District’s restroom rule was unwritten, enforced inconsistently, and reportedly required legal/medical documentation or a birth‑certificate sex change (which in Wisconsin requires surgery).
- Ash filed an administrative OCR complaint, withdrew it, then sued under Title IX and the Equal Protection Clause and moved for a preliminary injunction before his senior year.
- The district court denied the School District’s motion to dismiss and granted a preliminary injunction allowing Ash to use the boys’ restrooms and barring discipline or surveillance; the School District appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court should exercise pendent jurisdiction over denial of motion to dismiss | Whitaker: pendent review unnecessary; appealable relief stands on injunction | School Dist.: denial of dismissal is inextricably intertwined with injunction and should be reviewable | Court declined pendent jurisdiction; denial of dismissal not required to review injunction |
| Likelihood of irreparable harm for preliminary injunction | Whitaker: denial causes medical risk, psychological harm, and stigma that monetary relief cannot cure | School Dist.: harms not quantified; alternatives (single‑user restrooms) available; plaintiff delayed | Court: plaintiff showed likely irreparable harm (medical and psychological); alternatives stigmatizing and inadequate |
| Title IX coverage: can a transgender student state a claim via sex‑stereotyping theory | Whitaker: policy punishes gender nonconformance and treats him differently on basis of sex; Title IX protects against sex‑stereotyping discrimination | School Dist.: "sex" means biological sex; transgender status not covered; providing gender‑neutral option suffices | Court: Title IX claim likely to succeed under sex‑stereotyping theory; gender‑neutral options here were not adequate |
| Equal Protection: applicable standard and justification for policy | Whitaker: bathroom rule is sex‑based (relies on birth‑certificate sex) so heightened scrutiny applies; District’s privacy rationale insufficient | School Dist.: classification not sex‑based; rational basis applies to protect student privacy | Court: classification is sex‑based (depends on sex marker); heightened scrutiny applies; District failed to show an "exceedingly persuasive" justification; privacy interest asserted was speculative |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality) (sex‑stereotyping is actionable sex discrimination)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (statutory prohibitions may cover harms beyond principal concerns)
- Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (prior dicta suggesting narrow reading of "sex" in Title VII)
- Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (Title VII protects against sex discrimination including sex‑stereotyping and against discrimination based on sexual orientation)
- Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against transgender persons is discrimination based on gender nonconformity)
- United States v. Virginia, 518 U.S. 515 (1996) (sex‑based classifications require an "exceedingly persuasive" justification)