A single student’s case has turned into a massive legal decision for all transgender Americans.
On Tuesday, the Seventh Circuit Court of Appeals ruled that the Kenosha Unified School District in Wisconsin violated the rights of a trans student, Ash Whitaker, when it refused to let him use the boys’ bathroom.
According to the court, Whitaker is likely to win upon a full review of the case (instead of the current review of a lower court’s preliminary injunction) on his claim that the school’s actions violated Title IX, a federal law that prohibits discrimination in schools based on sex, and the Equal Protections Clause of the 14th Amendment. So it upheld a lower court’s injunction forcing the school to let Whitaker use the bathroom that aligns with his gender identity.
In the decision, a three-judge panel from the Seventh Circuit Court concluded that the school district “has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents” — a rebuke of the prevalent myth that letting trans people use the bathroom for their gender identity will hurt others.
The ruling has big implications: If existing federal law and the 14th Amendment shield trans people from discrimination, then it’s not just Whitaker’s rights that are protected here, but all trans students’. And if bans against sex discrimination in particular apply to trans people, then it’s not just students’ rights that are protected, but all trans people who face discrimination in other settings where sex discrimination is banned — so not just schools, but the workplace and housing as well.
“This powerful decision — another in a growing list of rulings affirming the constitutional rights of transgender people — helps Ash and tens of thousands of students like him get the same opportunity to learn as any other student,” National Center for Transgender Equality executive director Mara Keisling said in a statement. “It recognizes that fully respecting and including transgender students like Ash Whitaker is legally and morally the right thing to do, and that discrimination against these young people because of who they are is cruel, wrong and illegal.”
The ruling comes on the heels of similar court battles, particularly that of Gavin Grimm in Virginia. That case briefly rose to the US Supreme Court, which LGBTQ advocates hoped would decide the legal issue — of whether Title IX really applies to trans people. But since the Trump administration rescinded a legal guidance protecting trans people that was attached to Grimm’s situation, the court punted on the case, sending it back down to the lower courts.
The Seventh Circuit Court’s case does not have the limitation of being attached to the guidance or any other regulation that the Trump administration could rescind. Instead, it poses the straight question: Are trans people protected under federal law? If other courts agree with the Seventh Circuit Court, that could reshape the face of civil rights laws in America — and help fill a void that’s left trans people legally unprotected from discrimination across most of the US.
Most states don't explicitly ban anti-LGBTQ discrimination
Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.
LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination.
The argument: Discrimination against someone based on their gender identity is fundamentally rooted in sex-based expectations. For example, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on an idea of what a person of a certain sex assigned at birth should be like. So since federal civil rights laws, such as Title IX, ban sex discrimination in the workplace, housing, and schools, they should ban discrimination against trans people in these settings as well.
This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney who worked on Grimm’s case, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”
Seventh Circuit Judge Ann Claire Williams embraced this view in her ruling on Tuesday: “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.”
But the court went even further — arguing that the Kenosha Unified School District’s actions violated the 14th Amendment. The school district claimed that it treats all boys and girls equally — meaning it forces them all to use certain bathrooms based on the sex they were assigned at birth instead of their gender identity. But Williams ruled that this is “untrue,” adding, “Rather, the School District treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently.”
Anti-trans bathroom policies harm trans people — and are based on a myth
Anti-trans policies like the Kenosha Unified School District’s do real harm to trans students. Forcing trans people to use the bathroom that doesn’t align with their gender identity acts as a reminder that as far as society has come on some LGBTQ issues, it’s still not completely willing to accept trans people and their identities — even if trans people pose no danger to anyone else.
Indeed, this is exactly the argument that the Seventh Circuit Court seemingly sided with. The court’s ruling stated:
[Whitaker] 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.
Under anti-trans measures, trans people have to constantly fear using the bathroom that corresponds with their gender identity. As Lily Carollo wrote for Vox, “From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I’m not the only one. I will be an anxious mess every time I use the bathroom, but I don’t see any option. It’s all I can do, really. I am a woman.”
Grimm, a teenage trans activist who sued his school for bathroom access, framed it another way. “This wasn’t just about bathrooms. It was about the right to exist in public spaces for trans people,” Grimm previously told me, quoting trans actress Laverne Cox. “Without the access to appropriate bathrooms, there’s so much that you’re limited in doing. If you try to imagine what your day would be like if you had absolutely no restrooms to use other than the home, it would take planning. You would probably find yourself avoiding liquids, probably avoiding eating, maybe going out in public for too long at a time.”
At the same time, a major argument used to impose anti-trans policies is based on a total myth: that letting trans people use the bathroom or locker room for their gender identity will allow men to disguise themselves as trans women to go into women’s bathrooms or locker rooms and sexually assault and harass women.
But even if trans people are allowed to use the bathroom or locker room that aligns with their gender identity, sexual assault remains illegal.
There’s also no evidence that nondiscrimination laws — and other policies that let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, the left-leaning media watchdog organization Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives who favor these policies usually counter that there are examples of men sneaking into women’s bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto’s province) protected trans people in a nondiscrimination law. So the law couldn’t have been the cause.
While the issue is now being used primarily against trans people, historically bathroom fears have been regularly deployed against civil rights causes. They were used against black people to justify segregation — by invoking fears that black men would attack white women in bathrooms. And they were used to stop the Equal Rights Amendment, which tried to establish legal equality between men and women, because opponents claimed it would lead to the abolition of bathrooms for different genders, potentially putting women in danger.
Some people are also, frankly, just bothered by the idea that someone in the same bathroom or locker room won’t share the same genitalia as them.
This gets to the heart of the issue: Bathrooms are places where really private things happen, and that makes people feel vulnerable in all sorts of ways. “People are afraid because they’re exposed,” Kathryn Anthony, author of Designing for Diversity: Gender, Race and Ethnicity in the Architectural Profession, told the Guardian. “There’s a vulnerability we feel in public restrooms we don’t feel in other places.”
But a lot of things happen in public bathrooms that people aren’t comfortable with — and people have managed to deal with it to accommodate others’ rights and needs.
So if it’s not harming anyone, perhaps it’s best, LGBTQ advocates argue, to let trans people use the facility for their gender identity without making them feel ostracized and discriminated against. (Discrimination is a huge contributor to gender dysphoria, a medical condition some trans people experience that can cause depression, anxiety, and even suicidal ideation.)
On Tuesday, the Seventh Circuit Court sided with this view. It agreed that there is no evidence that letting Whitaker use the bathroom for his gender identity will cause any harm to anyone else, while acknowledging the clear harms the school’s policy had done to him.