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Seventh Circuit Title IX Ruling May Impact Transgender Employee Protections

    Client Alerts
  • June 5, 2017

The battles over transgender persons’ civil rights continue nationwide, especially when the controversy involves restroom access. Last week, the Seventh Circuit Court of Appeals concluded that a Wisconsin school district likely violated a transgender student’s statutory and constitutional rights when it required him to use the bathroom consistent with his biological gender. Although not an employment case, this decision could have a significant impact on similar claims brought under federal civil rights laws governing the employment relationship.

In Whitaker v. Kenosha Unified School District, the student sued the school district under Title IX claiming sex discrimination, as well as constitutional equal protection rights violations. The district court granted the plaintiff a preliminary injunction to enjoin the bathroom policy, and on appeal the Seventh Circuit upheld this decision.

The court concluded that Title IX prohibits discrimination against transgender persons based on the sex stereotyping theory recognized by the Supreme Court in its 1989 Price Waterhouse decision. “By definition, a transgender person does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” The Seventh Circuit found that the school’s policy resulted in significant harm to the plaintiff that justified the injunction.

Price Waterhouse was as employment case decided under Title VII. By using it as the basis for upholding a transgender student’s right to access restrooms consistent with his gender identity, the Seventh Circuit implicitly recognized that similar policies by employers would violate Title VII’s sex discrimination prohibitions. While this is not the first decision to reach this conclusion, the Seventh Circuit concluded that such policies result in significant harm to transgender persons. Employers faced with similar requests from transgender employees cannot rely on coworker complaints or alternative restroom arrangements to provide a convincing legal defense to sex discrimination claims.