Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 16-3522

Citation858 F.3d 1034
Decision Date30 May 2017
Docket NumberNo. 16-3522,16-3522
Parties Ashton WHITAKER, BY his mother and next friend Melissa WHITAKER, Plaintiff–Appellee, v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, et al., Defendants–Appellants
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Robert Theine Pledl, Attorney, Pledl & Cohn, Milwaukee, WI, Joseph John Wardenski, Sasha M. Samberg-Champion, Attorneys, Relman, Dane & Colfax PLLC, Washington, DC, Shawn Thomas Meerkamper, Ilona M. Turner, Attorneys, Transgender Law Center, Oakland, CA, for PlaintiffAppellee.

Ronald S. Stadler, Attorney, Mallery & Zimmerman, Milwaukee, WI, for DefendantsAppellants.

Jordan W. Lorence, Attorney, Alliance Defending Freedom, Washington, DC, Gary McCaleb, Jeremy D. Tedesco, Attorneys, Alliance Defending Freedom, Scottsdale, AZ, for Amicus Curiae Alliance Defending Freedom.

Kyle Palazzolo, Attorney, Lambda Legal Defense & Education Fund, Chicago, IL, for Amicus Curiae School Administrators from Twenty-One States and the District of Columbia.

Julia Renee Lissner, Attorney, Akerman LLP, Chicago, IL, for Amici Curiae Forge, Inc., Indianapolis Chapter of P-Flag, Inc., Genders & Sexualities Alliance Network, Gender Expansive Kids and Company.

Maureen Alger, Attorney, Cooley Godward Kronish LLP, Palo Alto, CA, for Amici Curiae Gay Straight Alliance for Safe Schools, Inc., Illinois Safe Schools Alliance, Indiana Youth Group, Inc., Gender Spectrum Charitable Fund.

Charles A. Rothfeld, Attorney, Mayer Brown LLP, Washington, DC, for Amicus Curiae National Women's Law Center.

Mark E. Haddad, Attorney, Sidley Austin LLP, Los Angeles, CA, for Amici Curiae Katherine R Allen, Nadav Antebi–Gruszka, M.V. Lee Badgett.

Before Wood, Chief Judge, and Rovner and Williams, Circuit Judges.

Williams, Circuit Judge.

Ashton ("Ash") Whitaker is a 17 year-old high school senior who has what would seem like a simple request: to use the boys' restroom while at school. However, the Defendants, the Kenosha Unified School District and its superintendent, Sue Savaglio, (the "School District") believe that the request is not so simple because Ash1 is a transgender boy. The School District did not permit Ash to enter the boys' restroom because, it believed, that his mere presence would invade the privacy rights of his male classmates. Ash brought suit, alleging that the School District's unwritten bathroom policy2 violates Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment's Equal Protection Clause.

In addition to filing suit, Ash, beginning his senior year, moved for preliminary injunctive relief, seeking an order granting him access to the boys' restrooms. He asserted that the denial of access to the boys' bathroom was causing him harm, as his attempts to avoid using the bathroom exacerbated his vasovagal syncope

, a condition that renders Ash susceptible to fainting and/or seizures if dehydrated. He also contended that the denial caused him educational and emotional harm, including suicidal ideations. The School District vigorously objected and moved to dismiss Ash's claims, arguing that Ash could neither state a claim under Title IX nor the Equal Protection Clause. The district court denied the motion to dismiss and granted Ash's preliminary injunction motion.

On appeal, the School District argues that we should exercise pendent appellate jurisdiction to review the district court's decision to deny the motion to dismiss. However, we decline this invitation, as the two orders were not inextricably intertwined and we can review the grant of the preliminary injunction without reviewing the denial of the motion to dismiss.

The School District also argues that we should reverse the district court's decision to grant the preliminary injunction for two main reasons. First, it argues that the district court erred in finding that Ash had demonstrated a likelihood of success on the merits because transgender status is neither a protected class under Title IX nor is it entitled to heightened scrutiny. And, because the School District's policy has a rational basis, that is, the need to protect other students' privacy, Ash's claims fail as a matter of law. We reject these arguments because Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex-stereotyping theory. Further, because the policy's classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim. The School District has not provided a genuine and exceedingly persuasive justification for the classification.

Second, the School District argues that the district court erred in finding that the harms to Ash outweighed the harms to the student population and their privacy interests. We disagree. The School District has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents. The harms identified by the School District are all speculative and based upon conjecture, whereas the harms to Ash are well-documented and supported by the record. As a consequence, we affirm the grant of preliminary injunctive relief.

I. BACKGROUND

Ash Whitaker is a 17 year-old who lives in Kenosha, Wisconsin with his mother, who brought this suit as his "next friend."3 He is currently a senior at George Nelson Tremper High School, which is in the Kenosha Unified School District. He entered his senior year ranked within the top five percent of his class and is involved in a number of extracurricular activities including the orchestra, theater, tennis, the National Honor Society, and the Astronomical Society. When not in school or participating in these activities, Ash works part-time as an accounting assistant in a medical office.

While Ash's birth certificate designates him as "female," he does not identify as one. Rather, in the spring of 2013, when Ash was in eighth grade, he told his parents that he is transgender and a boy. He began to openly identify as a boy during the 2013-2014 school year, when he entered Tremper as a freshman. He cut his hair, began to wear more masculine clothing, and began to use the name Ashton and male pronouns. In the fall of 2014, the beginning of his sophomore year, he told his teachers and his classmates that he is a boy and asked them to refer to him as Ashton or Ash and to use male pronouns.

In addition to publicly transitioning, Ash began to see a therapist, who diagnosed him with Gender Dysphoria, which the American Psychiatric Association defines as "a marked incongruence between one's experienced/expressed gender and assigned gender...."4 Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 452 (5th ed. 2013). In July 2016, under the supervision of an endocrinologist at Children's Hospital of Wisconsin, Ash began hormone replacement therapy. A month later, he filed a petition to legally change his name to Ashton Whitaker, which was granted in September 2016.

For the most part, Ash's transition has been met without hostility and has been accepted by much of the Tremper community. At an orchestra performance in January 2015, for example, he wore a tuxedo like the rest of the boys in the group. His orchestra teacher, classmates, and the audience accepted this without incident. Unfortunately, the School District has not been as accepting of Ash's requests to use the boys' restrooms.

In the spring of his sophomore year, Ash and his mother met with his guidance counselor on several occasions to request that Ash be permitted to use the boys' restrooms while at school and at school-sponsored events. Ash was later notified that the administration had decided that he could only use the girls' restrooms or a gender-neutral restroom that was in the school's main office, which was quite a distance from his classrooms. Because Ash had publicly transitioned, he believed that using the girls' restrooms would undermine his transition. Additionally, since Ash was the only student who was permitted to use the gender-neutral bathroom in the school's office, he feared that using it would draw further attention to his transition and status as a transgender student at Tremper. As a high schooler, Ash also worried that he might be disciplined if he tried to use the boys' restrooms and that such discipline might hurt his chances of getting into college. For these reasons, Ash restricted his water intake and at-tempted to avoid using any restroom at school for the rest of the school year.

Restricting his water intake was problematic for Ash, who has been diagnosed with vasovagal syncope

. This condition renders Ash more susceptible to fainting and/or seizures if dehydrated. To avoid triggering the condition, Ash's physicians have advised him to drink six to seven bottles of water and a bottle of Gatorade daily. Because Ash restricted his water intake to ensure that he did not have to utilize the restroom at school, he suffered from symptoms of his vasovagal syncope, including fainting and dizziness. He also suffered from stress-related migraines, depression, and anxiety because of the policy's impact on his transition and what he perceived to be the impossible choice between living as a boy or using the restroom. He even began to contemplate suicide.

In the fall of 2015, Ash began his junior year at Tremper. For six months, he exclusively used the boys' restrooms at school without incident. But, in February 2016, a teacher saw him washing his hands at a sink in the boys' restroom and reported it to the school's administration. In response, Ash's guidance counselor, Debra Tronvig, again told Ash's mother that he was permitted to only use the girls' restrooms or the gender-neutral bathroom in the school's main office. The next month, Ash and his mother met with Assistant Principal Holly Graf to discuss the school's policy. Like before, Ms. Graf stated that Ash was not permitted to use the boys' restrooms. However, the reason sh...

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