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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions