United States: During Last Week Of School Seventh Circuit Rules In Favor Of Transgender Teen On Restroom Use

Executive Summary: On May 30, 2017, on the heels of the Seventh Circuit's ground-breaking en banc decision in Hively v. Ivy Tech. College holding that sexual orientation is a protected trait under Title VII, a unanimous three-judge panel of that Circuit upheld an injunction requiring a Wisconsin school district to allow a transgender student whose sex assigned at birth was female and who now identifies as male to use the boys' restroom. In Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit ruled that under the gender non-conformity/sex stereotyping theory of liability as set out by Price Waterhouse v. Hopkins and its progeny, Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit a school from barring a transgender student from using the bathroom that corresponds to his or her gender identity.

Background: Transgender student (and employee) bathroom access has become a highly publicized legal issue. Title IX, which prohibits discrimination "because of sex" in schools receiving federal funding, does not define the term "sex," leaving speculation over whether the definition includes "gender identity." On May 13, 2016, the Obama administration issued a guidance letter ("the Guidance") to schools opining that Title IX's definition of sex includes gender identity and directing them to permit all students to use the restroom corresponding with their gender identity or risk losing federal funding. Texas v. United States ensued, in which 13 states and school districts were granted a nationwide temporary injunction by the U.S. District Court for the Northern District of Texas in August 2016, blocking enforcement of the Guidance. The Obama administration appealed to the U.S. Court of Appeals for the Fifth Circuit.

At the same time, the case of G.G. was before the Fourth Circuit. G.G. – like Ash Whitaker – is a transgender boy who was denied use of the boys' bathroom at his high school. The Fourth Circuit, relying, in part, on the Guidance, ruled in favor of G.G. in holding that Title IX prohibits gender identity discrimination. The U.S. Supreme Court granted certiorari on this issue, and oral argument was sent for March 2017.

However, just a month after President Trump took office, in February 2017, his administration withdrew the Guidance, "in order to further and more completely consider the legal issues involved." As a result, not only was Texas v. United States mooted, but the Supreme Court dismissed Gloucester County's appeal, and remanded the case to the Fourth Circuit for further analysis. On June 5, 2017, the Fourth Circuit scheduled oral argument in G.G.'s case for September 2017. Unfortunately, G.G., who graduates from high school this month, will have graduated by the time a decision is rendered in his lawsuit.

The results for Ash Whitaker, however, will hopefully be different. In Whitaker, the Seventh Circuit did not focus its attention on clarifying the meaning of the term "sex" in Title IX, instead approaching the issue as one of sex stereotyping under Price Waterhouse. Ash is a transgender male high school student. Although he is living his life as a boy, is taking hormone replacement therapy and has legally changed his name, the school district refused to allow him access to the boys' bathroom, instead requiring him to use the girls' bathroom or gender-neutral bathrooms located at remote and inconvenient locations on the school campus. The school district reasoned that it needed to protect the privacy of its other students, and that absent sex reassignment surgery confirmed by a medical professional – for which he is not medically qualified until his 18th birthday – he could not use the boys' bathroom.

Ash sought a preliminary injunction in the Eastern District of Wisconsin compelling the school to allow him to use the boys' bathroom. The district court denied the school's motion to dismiss and granted the preliminary injunction, ruling, inter alia, that Ash was likely to succeed on the merits of both his Title IX and Equal Protection claims. The school appealed.

On May 30, 2017, with just days left before Ash graduated from high school, the Seventh Circuit, relying heavily on Title VII precedent, and citing to its recent decision in Hively, unanimously upheld the injunction. Rather than follow the path of G.G., however, the Seventh Circuit relied on Price Waterhouse. In Price Waterhouse, the U.S. Supreme Court held that sex stereotyping is a type of sex discrimination actionable under Title VII. The Seventh Circuit specifically rejected the school's argument that the court was bound by its 1984 decision in Ulane v. Eastern Airlines, Inc. in which it held that the meaning of "sex" in Title VII must be read narrowly and, therefore, does not protect "transsexuals." Rather, the Seventh Circuit noted that Ulane was decided before Price Waterhouse. The Price Waterhouse decision leaves an avenue for transgender individuals to successfully raise a Title VII claim on a sex-stereotyping theory of liability. The Seventh Circuit concluded that "[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth." The Seventh Circuit also specifically rejected the school's argument that Congressional inaction on the matter is dispositive of the claim, noting that the U.S. Supreme Court has specifically held that Congressional inaction can be caused by many factors and, therefore, "lacks persuasive significance."

The Seventh Circuit also relied on Price Waterhouse with regard to Ash's Equal Protection claim. The court held that because sex stereotyping is sex discrimination, the school's refusal to allow Ash to use the boys' bathroom is a sex-based decision that requires heightened scrutiny. The court, however, declined to reach the constitutional issue of whether "transgender status" and "gender identity" are "entitled to heightened scrutiny in their own right" because Ash's case can be resolved on a sex stereotyping theory.

Bottom Line: While Whitaker is a Title IX case, given the Seventh Circuit's extensive reliance on Title VII cases in its ruling, the decision is easily transferrable to the employment context. Even though Title IX and Title VII do not specifically identify gender identity as a protected class, courts, including the Whitaker court, are consistently extending the Price Waterhouse sex-stereotyping analysis to claims raised by transgender and gender nonconforming individuals.

As the school year comes to an end, summer is the perfect time for school districts and employers to revisit their policies relating to transgender students/employees and bathroom use. Under Whitaker, "separate but equal" (or in some cases, unequal) gender-neutral facilities for transgender individuals may not be sufficient as a matter of law. Schools receiving federal funding and employers should consider policies that allow individuals to use the bathroom that corresponds to their gender identity. Where possible, gender neutral bathrooms should be made available to anyone who would prefer to use a private bathroom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.