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7th Circuit Rules for Student in Transgender Bathroom Dispute

Ash Whitaker was a transgender student in Wisconsin. He was born female but since his freshman year in high school has identified as a male. His name has been legally changed to reflect his gender identity and he has begun hormone therapy. He requested to use the boys’ restroom at his public high school. This request was declined; he was informed that he could use the girls’ bathroom or the gender-neutral bathroom in the administrative building far across campus. He felt that using a girls’ bathroom would undermine his transition and using the gender-neutral bathroom singled him out. Although he suffered from a medical condition that required him to stay hydrated, Ash tried to avoid drinking so he did not have to use a bathroom. In his junior year, Ash began using the boys’ bathroom anyway. When the school administration noticed, they told him he could not use it.

Ash sued the school district, asserting a violation of Title IX. That statute provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity.” Like employees under Title VII, students may not be treated differently on the basis of gender.

The Seventh Circuit Court of Appeals looked to the Supreme Court’s Title VII case law, finding that it protected employees from discrimination based on gender stereotypes. The circuit court also used its own recent case holding that a homosexual plaintiff may state a claim for sex-based discrimination under Title VII. “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth,” according the court of appeals. Requiring Ash to use a bathroom that did not align with his gender identity was in fact a punishment to him for his failure to conform to the stereotype of his birth gender, which was a violation of Title IX. Moreover, his treatment was different than that of treatment of non-transgender students who could use the bathroom aligned with their gender identity.