The 7th Circuit has ruled that a school in Wisconsin must permit a transgender boy to use the boys’ bathroom. The court held that offering the student the use of a private, gender neutral bathroom was not adequate. The court held that the school’s policy about bathroom use amounted to discrimination based on sex in violation of Title IX, and a denial of equal protection in violation of the 14th Amendment to the U.S. Constitution.
The arguments made by both sides in this case are, by now, very familiar. The student claims that he is being stigmatized, singled out for no good reason, discriminated against. The school cites the desire for privacy for other students as they use the bathroom.
Different courts are going to come to different conclusions on these issues until the Supreme Court settles the matter. This might be the case that goes to the Supreme Court. The 7th Circuit seems to tee it up nicely for SCOTUS, relying heavily on the SCOTUS decision from 1989, Price Waterhouse v. Hopkins. That’s the case where the Court held that discrimination based on “gender non-conformity” was a form of sex discrimination. Here’s a quote from the 7th Circuit:
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.
The court dismissed the school’s argument about the privacy rights of its other 22,160 students:
What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction. For nearly six months Ash used the boys’ bathroom while at school and school sponsored-events without incident or complaint from another student.
And the court drew a distinction between concerns of the adults vs. those of the students:
In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District’s eyes.
…neither party has offered any evidence or even alleged that the School District has received any complaints from other students. (Emphasis in original).
This is the first transgender case I have read that looks beyond the law, into biology. Look at this:
Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.
The decision is not binding here in Texas, but will be important in any litigation Texas schools get involved in. And, of course, we await further developments on this from the legislature. Stay tuned!
The case of Whitaker v. Kenosha USD was decided by the 7th Circuit on May 30, 2017. It can be found at 2017 WL 2331751.
DAWG BONE: MAYBE WE ALL NEED TO GO BACK TO BIOLOGY 101.
File this one under: TRANSGENDER STUDENTS