Legal Updates


June 5, 2017

The United States Court of Appeals for the Seventh Circuit has upheld an injunction that was issued against a Wisconsin school district, effectively concluding that a transgender student is entitled under Title IX to use the school restroom of the gender with which the student identifies.


Despite a revolving door of guidance from the federal government and a slew of nationwide litigation over the legal rights and protections afforded to transgender students in schools, there has been no authoritative judicial opinion that both applies to Wisconsin school districts and that also addresses the rights of transgender students to use restroom facilities designated for the gender with which they identify.  This changed, however, on May 30, 2017.

In upholding a preliminary injunction that was first granted in September of 2016 by a lower court against the Kenosha Unified School District (“District”), a unanimous three-judge panel of the Seventh Circuit Court of Appeals (“7th Circuit”) issued a decision that will influence school policy in all school districts in Wisconsin.  Notably, the 7th Circuit (which has federal jurisdiction in Wisconsin, Illinois, and Indiana) indicated that both the U.S. Constitution and Title IX of the Education Amendments Act of 1972 (“Title IX”) afford transgender students protections against sex discrimination.


Legal questions concerning the rights of transgender students were amplified for many school leaders in May of 2016, when the Obama-era Department of Education (“DOE”) and Department of Justice (“DOJ”) issued joint guidance affirming the Departments’ position that “[Title IX and its implementing regulations] prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.  This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”

On February 22, 2017, the Trump-era DOE and DOJ jointly withdrew various Obama-era guidance documents, including the May 2016 letter.  The Trump-era Departments did not replace the Obama-era guidance with any new substantive guidance, but noted that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”

In addition to changes in the federal administration’s position, lawsuits involving schools, students, parents, and other interested parties have continued across the nation.  Perhaps most notably, the U.S. Supreme Court announced in October of 2016 that it would hear Gloucester County School Bd. v. G.G. ex rel. Grimm, a case from the Fourth Circuit that could potentially determine whether a transgender student has the right to use the restroom that corresponds to the student’s gender identity.  However, after the withdrawal of federal guidance, the U.S. Supreme Court declined to decide the Gloucester case on its merits.  Notably, the Fourth Circuit’s opinion in Gloucester had relied on Obama-era guidance, and that guidance no longer existed as of February 22, 2017.

After the U.S. Supreme Court declined to decide the Gloucester case, all eyes in Wisconsin turned to Whitaker v. Kenosha Unified School District No. 1, et al. in the 7th Circuit.

7th Circuit: Whitaker v. Kenosha Unified School District No. 1

Like the Gloucester case, Whitaker v. Kenosha Unified School District No. 1, et al. concerns a transgender student’s access to restroom facilities.  A high school student, Ash Whitaker, filed a lawsuit in federal court alleging that the District had violated Title IX and the Equal Protection Clause of the Fourteenth Amendment.

In September of 2016, the court granted Whitaker’s request for a preliminary injunction, effectively directing the District to provide him with access to the boys’ restrooms and prohibiting the District from enforcing any policy against him that would prevent him from using the boys’ restroom on school premises or at school-sponsored events.

The District appealed the injunction to the 7th Circuit. In the decision issued on May 30, 2017, the 7th Circuit upheld the lower court’s injunction.

7th Circuit Decision

In undertaking its review of the lower court’s preliminary injunction, the 7th Circuit found that Whitaker had “sufficiently demonstrated a likelihood of success on his Title IX claim,” and that “[the 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 [District] are all speculative and based upon conjecture . . . .”  Further, the 7th Circuit indicated that both the U.S. Constitution and Title IX afford transgender students protections against sex discrimination.

With regard to Title IX, the 7th Circuit stated:

“A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.  The [District’s] policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX.  Providing a gender‐neutral alternative is not sufficient to relieve the [District] from liability, as it is the policy itself which violates the Act. . . .”

With regard to the U.S. Constitution, the 7th Circuit stated:

“. . . [The District’s] policy is inherently based upon a sex‐classification and heightened review applies. Further, the [District] argues that since it treats all boys and girls the same, it does not violate the Equal Protection Clause.  This is untrue.  Rather, the [District] treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently.  These students are disciplined under the [District’s] bathroom policy if they choose to use a bathroom that conforms to their gender identity.  This places the burden on the [District] to demonstrate that its justification for its bathroom policy is not only genuine, but also ‘exceedingly persuasive.’ . . .  This burden has not been met here.”

Next Steps for School Districts

The 7th Circuit’s opinion is instructive, but is not the end of the matter.  The District has the option of requesting a review of the decision by all eleven judges serving on the 7th Circuit.  The District also has the option of appealing the decision to the U.S. Supreme Court.  In addition, the 7th Circuit’s opinion merely upholds an injunction; it is still possible that the 7th Circuit might refine or elaborate upon its guidance in a subsequent opinion reviewing a final decision on the merits of the case.

For now, though, this much is clear: school leaders in Wisconsin need to re-evaluate policies and practices to make certain that they do not run afoul of the 7th Circuit’s pronouncements.  The 7th Circuit’s opinion provides clear, general guidance on its interpretation of Title IX and indicates that Title IX does apply to transgender students.  Consequently, Title IX protects transgender students in Wisconsin and school district policies and practices must account for those protections. 

Nevertheless, while the 7th Circuit’s decision does provide direction, it does not provide a detailed road map for school leaders to follow and does not account for any number of difficult scenarios that school districts may need to address.  The 7th Circuit’s opinion does, at times, focus upon, e.g., the unique medical issues that the student in that case faced, and it is not always clear whether the 7th Circuit reiterates those circumstances purely to inform or whether it sees them as factually necessary to its conclusions. 

In addition, the case that the 7th Circuit decided involves access to restrooms.  The 7th Circuit carefully reviewed the physical realities of the student’s restroom use as part of its decision (noting that the student went into a private restroom stall and shut the door when he used the restroom).  The 7th Circuit presumably identified these facts, at least in part, to address privacy concerns that had been raised by the District.  Consequently, the 7th Circuit’s opinion does not provide direct or complete guidance on issues related to locker rooms and other changing areas that school districts make available to students. 


While the 7th Circuit’s decision represents an important development in the law and does provide important guidance to school districts, innumerable questions remain.  The 7th Circuit has made it clear that Title IX provides protection to transgender students; defining the contours and extent of that protection will, undoubtedly, be part of the future work of the court.  As a result, school leaders should revisit Title IX policies and practices in their school districts, and consult with counsel about how those policies and practices are to be applied to transgender students.

For questions regarding this article, please contact your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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