LGBT advocates and community members have a two extra reasons to celebrate Indiana’s Pride festivals this year!
In less than two month’s time, the 7th Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana) has determined that discrimination based upon sexual orientation or gender identity ARE forms of sex discrimination in the school and employment settings.
Just yesterday, in a case that has civil rights advocates cautiously optimistic, the 7th Circuit paved the way for transgender students to claim protection under the US Constitution as well as a federal civil rights law.
Ash Whitaker, a 17 year old, transgender senior, challenged his public school’s unwritten policy that (1) required him to use the girls’ restroom or one of two unisex restrooms; and (2) provided that school officials monitor and report if he used the boys’ restroom.
The court said “(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.[i] They went on to say it is also likely that the student will succeed in proving that the school’s policies violate the Equal Protection Clause of the 14th Amendment.
The Equal Protection Clause means that those who are situated similarly shall be treated the same. The Court said that Kenosha’s policy cannot be implemented without reference to sex, and as such, must meet a heightened level of scrutiny. In other words, the school district must prove that “the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” The school district failed to provide proof that its stated policy of protecting other students’ right to privacy was genuine and that the policy was critically necessary to address those genuine concerns.
It was in its discussion of equal protection, that the 7th Circuit gave us a glimpse into its reasoning. The school’s attempt to justify the policy on grounds that it was designed to protect other students’ privacy interests does not persuade the three-judge panel.
The Court found that the School could only provide general examples of parental complaints, and that neither parental complaints nor the one student complaint raised was sufficient reason to implement the policy. The Court pointed to the fact that Ash had used the boys’ restroom for months without incident before the school adopted the policy.
The Court also called out the school’s stated policy in its detailed-discussion of how students in general use a communal restroom.
“Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”
The Court continued:
“Further, if the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre‐pubescent and post‐pubescent children who do not look alike anatomically. But the School District has not drawn this line.”
It becomes clear that the School continued to adopt and amend their policy as the family met each one of their requests. First the school said it would permit Ash to use the boy’s restroom after his sex was changed in the school records (without telling the family what documentation it would need to update their records). Ash, through his mother, submitted medical documentation as to his gender, but the school continued to prevent Ash from using the boys’ restroom.
It also becomes clear that not putting their policy into writing did not prevent the lawsuit as they’d hoped. The Court was able to see through their efforts to avoid putting their policy into writing. The Court took issue, calling the school’s birth certificate policy, arbitrary and unconstitutional. The School said for the first time during oral arguments that they’d permit Ash to use the boy’s restroom if he could get his birth certificate updated to reflect “male”, something impossible for those born in Wisconsin to do until after they turn 18 and undergo gender confirmation surgery. LGBT advocates will cheer the Court’s recognition that the sex placed on one’s birth certificate is not a “true proxy for one’s biological sex” and discussed the various anatomical differences with which people are born. The Court also noted those born in other states might be able to update their birth certificate and then move to and enroll in a Wisconsin public school, thereby proving the school’s policy was arbitrary.
The Court noted that the facts of the case and the context of the policy are all important. They noted that Ash had lived nonstop as a boy since his transition, that he had a diagnosis of gender dysphoria, that he had suffered harm when trying to follow the school’s policy, and that he had used the boys’ restroom for quite some time prior to the school’s policy without incident. The Court also placed weight on the fact that school administrators from 21 states and the District of Columbia had signed onto an amici brief (“friend of the court”) explaining that Kenosha’s concerns have not materialized at any of their schools, all which have trans-inclusive policies.
While the Court has answered some questions surrounding employment and school discrimination toward transgender individuals, the Court was not willing to say that “gender identity” or “transgender status” is a protected class, but they did do something equally helpful to LGBT advocates and their clients. The Court held that policies that treat students differently based upon their nonconformity to sex or gender stereotypes will fail under Title VII and will likely fail under the US Constitution. The old saying that there’s “more than one way to skin a cat” applies here. Advocates will want to frame their arguments in the form of gender nonconformity as they move forward.
As for employment discrimination, the same 7th Circuit overturned several cases and held that employment discrimination based upon sexual orientation is a form of sex discrimination, prohibited by federal law.[ii] In this case, Kimberly Hively taught at a public college part-time. Her attempts at full time employment were unsuccessful, and finally her part-time contract was terminated. She alleges that the employment decisions were based upon her sexual orientation. The Court agreed that employment decisions based upon one’s sexual orientation amount to prohibited sex discrimination.
The litigation in both cases continues. In Hively, the parties return to the trial level to establish why she was fired unless they are able to settle the matter. And in Whitaker, it is possible that the parties will settle or the school district could push to litigate fully.
The 7th Circuit was consistent in its rulings. The Court relied on decades-old United States Supreme Court decisions and not on recent Presidential actions.
There are other questions left for another day and other cases, such as whether religious schools can discriminate and whether employment decisions based upon sexual orientation also violate the Equal Protection Clause. But this is a huge step towards full equality in school and employment.
These cases should also prove instructive for interpreting Indiana state law, which prohibits sex discrimination in most school and employment settings.
Employers, schools, and civil rights advocates would do well to read the historic Supreme Court cases upon which these cases rest.
[i] Whitaker v. Kenosha Unified School District, 16-cv-3522 (7th Cir, 2017).
[ii] Hivley v. Ivy Tech Community College, 15-cv-1720 (7th Cir, 2017).