By: Brittany Flaherty Theis

In the summer and fall of 2016, Ashton Whitaker (a transgender male student), sought and obtained a preliminary injunction enjoining the school district he attended from: 1) denying him access to the boys’ restroom; 2) enforcing any written or unwritten policy against him that would prevent him from using the boys’ restroom while on school property or attending school-sponsored events; 3) disciplining him for using the boys’ restroom on school property or attending school-sponsored events; and 4) monitoring or surveilling his restroom use in any way. The school district appealed. On May 30, 2017, the United States Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) affirmed the district court’s granting of the preliminary injunction, in a decision that is of particular interest to Illinois school districts, which are also in the Seventh Circuit.

As with all court decisions it is important to consider the procedural posture of the case. Here, the district court granted the preliminary injunction and the appellate court is charged with determining whether the district court abused its discretion. Substantial deference is given to the district court’s weighing of the evidence and balancing of the applicable equitable factors. The Seventh Circuit reviewed the legal issues de novo and the factual findings for clear error. Below is a summary of the background and legal analysis provided by the Seventh Circuit in Whitaker v. Kenosha Unified School District No. 1; the case has not yet been heard on its merits.

Ash Whitaker is a senior in the Kenosha Unified School District (“School District”) in Wisconsin. He is a 17 year old in his senior year. Ash was born female, but began openly identifying as a male during the 2013-2014 school year. Ash was diagnosed with Gender Dysphoria, participated in gender replacement therapy, and legally changed his name to Ashton Whitaker (“Ash”).

During his sophomore year, Ash and his mother met with his guidance counselor to request that Ash be permitted to use the boys’ restrooms. His requests were denied and he was told he could only use the girls’ restrooms or a gender-neutral restroom in the school’s main office. The gender-neutral restroom was quite a distance from his classrooms and he was the only student granted access to that restroom. According to his complaint, rather than use those restrooms, Ash restricted his water intake, which exacerbated his vasovagal syncope (a condition rendering him more susceptible to fainting and/or seizures if dehydrated); experienced stress-related migraines, depression, and anxiety because of the impact on his transition; and contemplated suicide.

During his junior year, Ash exclusively used the boys’ restrooms at school without incident (a fact the Seventh Circuit Court of Appeals mentions multiple times). After six months, a teacher noticed Ash using the boys’ restroom and reported it to the administration. Ash was again told he could only use the girls’ restrooms or the gender-neutral bathroom in the school’s main office. When Ash and his mother again discussed this policy with the administration, they were told Ash would need legal or medical documentation to change his official records, which listed him as a female. After Ash submitted two letters from his pediatrician, the School District told Ash he would have to complete a surgical transition.

A preliminary injunction is considered an extraordinary remedy, so courts applied a two-step inquiry to determine whether such relief is required. First, the party requesting the preliminary injunction has the burden of showing:

  1. that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action;
  2. inadequate remedies at law exist; and
  3. he has a reasonable likelihood of success on the merits.

If the movant makes that threshold showing, the court determines whether the balance of harm favors the moving party or whether the harm to the other parties or the public sufficiently outweighs the movant’s interests.

Here, the district court “did not clearly err” when it relied upon the expert opinions supporting Ash’s assertion he would suffer irreparable harm absent preliminary relief. The experts opined that use of the boys’ restrooms is integral to Ash’s transition and emotional well-being and noted that his emotional well-being was negatively impacted by the School District’s “policy.” The court noted that the School District’s suggestion that Ash use the gender-neutral restrooms, to which only he had access, further stigmatized Ash.

The court explained that to show one has no adequate remedy at law, the movant must demonstrate that any award would be “seriously deficient as compared to the harm suffered.” Ash asserted that the “policy” caused him to contemplate suicide. He also provided an expert report supporting that allegation and alleging that he would suffer “life-long diminished well-being and life-functioning.” Because the court was not persuaded that any monetary damages typical in a tort action would be sufficient to compensate for the prospective harm Ash alleged, it determined that Ash established that there was no adequate remedy of law available.

Next the court considered Ash’s likelihood of success on the merits, which requires a movant to show that his chances of success in his claims are “‘better than negligible’” – a low threshold. In this analysis, the court considered both the Title IX claim and the Equal Protection Clause claim. The court reviewed case law and the arguments of both parties in significant detail, and determined that Ash established a probability of success on the merits for both claims.

Because all three of the initial showings were satisfied, the court next reviewed the district court’s balancing of the harms faced by both parties and the public as a whole. In this regard, the court considered that Ash used the boys’ restroom without incident for nearly six months and that the School District did not produce any evidence of any students or parents complaining during that time. It also described many of the School District’s claims as speculative. The court described and considered statements in support of inclusive policies made by amici who are school administrators and, ultimately, held that the district court did not err in balancing the harms in favor of Ash, the movant.

The opinion published by the United States Court of Appeals for the Seventh Circuit in Whitaker makes clear that courts will analyze school districts’ treatment of transgender students on a case-by-case basis, in a very fact-specific review. The opinion also gives significant insight into the court’s view of the merits of the movant’s Title IX and Equal Protection Clause claims.

Whitt Law will continue to monitor legal developments in this area of law. Please contact Whitt Law Attorney Brittany Flaherty Theis if you have any questions about this case or wish to learn more.

UPDATE: On August 25, 2017, Kenosha Unified School District No. 1 filed a Petition for a Writ of Certiorari in which it asked the United States Supreme Court to review the Seventh Circuit’s decision in this case. The Plaintiff (Ash) has until September 27, 2017 to file a response with the United States Supreme Court.

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