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On May 30, 2017, the 7th Circuit Court of Appeals ruled that the district court did not err in granting the plaintiff’s motion seeking issuance of a preliminary injunction in an action alleging that the defendant school board's refusal to allow plaintiff, a17 year old transgender student, to use the boy's restroom violated Title IX and the Equal Protection Clause under the 14th Amendment, where the refusal was based on the plaintiff's transgender status and where the defendant believed the plaintiff's mere presence in the boy's restroom would invade the privacy rights of his male classmates. The 7th Circuit ruled the plaintiff could properly assert a viable cause of action under Title IX even though his transgender status was not specifically mentioned as a protected classification in the Act, where plaintiff successfully demonstrated a likelihood of success based on a sex-stereotyping theory. The 7th Circuit noted that the Supreme Court has already recognized sex-stereotyping as a valid basis for discrimination claims. The sex-stereotyping theory was cited as a basis for the court’s refusal to follow its prior holding that transgender status is not a protected class under Title VII.

This result was also driven by the court’s conclusion that the applicable standard of review was heightened scrutiny and not rational basis because the defendant's policy was based on sex. The defendant failed to provide a genuine and exceedingly persuasive justification for its policy/belief, especially since the plaintiff used the boy's restroom for six months without incident until a teacher reported plaintiff's use of the bathroom. The defendant failed to present any evidence of complaints from other students or parents regarding the plaintiff’s boy’s bathroom use.

Also, for purposes of issuance of the preliminary injunction, plaintiff showed that harm to him in terms of medical ramifications arising out of the defendant's refusal to allow him use of the boy's restroom outweighed any perceived harm to the student population and their privacy interests. Plaintiff presented evidence from medical experts concerning the medical ramifications suffered by plaintiff. Interestingly, the experts and the court found the alternative solutions provided by the defendant exacerbated these medical conditions, rather than providing alternatives. The court also rejected the defendant’s argument that the privacy interests of the male student body outweighed the interests of the plaintiff.

A number of factors seem to have led to the court’s affirmance of the district court’s issuance of the preliminary injunction. One, the plaintiff used the boys bathroom for nearly 6 months without restriction or complaint. Two, the defendant’s “policy’ was unwritten so its boundaries were unclear. Three, plaintiff presented two medical experts in support of his case. It doesn’t appear that the defendant submitted much in the way of expert testimony, if any. Fourth, the defendant’s policy was based upon sex rather than security or some other non-protected class justifying the court’s use of a heightened scrutiny test rather than the rational basis test.

The court’s opinion notes the plaintiff sang in the choir and was allowed to dress like the other male singers in the choir. The court also noted that the plaintiff played on the tennis team. However, it does not note which tennis team he played on. The U.S. Department of Education previously noted that an allowed exception would relate to athletic activities. In other words, a school district could require a transgender athlete to play in the sport of his/her biological status without discriminating based upon sex. This issue played out recently in state wrestling meets and at some point will be assessed in litigation.

The plaintiffs are using sex-stereotyping theories to side step the fact that transgender status is not a written protected class under Titles VII or IX. The Supreme Court has recognized this distinction with approval and the lower courts are following suit. Ultimately, the Supreme Court will again be asked to address this question as it relates to transgender employees, students etc. In the interim, employers and school districts alike should take the time to draft reasonable transgender employee/student policies, avoiding sex-stereotyping as the basis for the policy. The employer/school district should take the time to poll their employees/student bodies/parents on the issues and any concerns they may have, and act accordingly. Finally, as defendants, these entities should rely upon these polls, their policy and retain expert testimony to rebut plaintiff’s irreparable harm arguments. It has become increasingly clear that courts are willing to put the privacy interests of the transgender student ahead of those of the rest of the student body. This occurs primarily because the plaintiff has established privacy interest through expert testimony and documentation while the defendant has relied upon speculation and conjecture. The student body’s privacy interests should be documented similarly.