Date: 06-06-2017

Case Style: Ashton Whitaker v. Kenosha Unified School District No. 1 Board of Education

Case Number: 16-3522

Judge: Williams

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Shawn Meerkamper, Alison Pennington, Bob Pledl, Mike Allen, Sasha Buchert, Bob Friedman, Ilona Turner, Joseph J. Wardenski

Defendant's Attorney: Aaron J. Graf, Jonathan E. Sacks, Ronald S. Stadler

Description: Ashton (“Ash”) Whitaker is a 17
year‐old high school senior who has what would seem like a
simple request: to use the boys’ restroom while at school.
2 No. 16‐3522
However, the Defendants, the Kenosha Unified School District
and its superintendent, Sue Savaglio, (the “School District”)
believe that the request is not so simple because Ash1 is
a transgender boy. The School District did not permit Ash to
enter the boys’ restroom because, it believed, that his mere
presence would invade the privacy rights of his male classmates.
Ash brought suit, alleging that the School District’s unwritten
bathroom policy2 violates Title IX of the Education
Amendments Act of 1972 and the Fourteenth Amendment’s
Equal Protection Clause.
In addition to filing suit, Ash, beginning his senior year,
moved for preliminary injunctive relief, seeking an order
granting him access to the boys’ restrooms. He 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. The School District
vigorously objected and moved to dismiss Ash’s claims, arguing
that Ash could neither state a claim under Title IX nor the
Equal Protection Clause. The district court denied the motion
to dismiss and granted Ash’s preliminary injunction motion.
On appeal, the School District argues that we should exercise
pendent appellate jurisdiction to review the district
1 We will refer to the Plaintiff‐Appellee as “Ash,” rather than by his
last name, as this is how he refers to himself throughout his brief.
2 We will refer to the School District’s decision to deny Ash access to
the boys’ restroom as a “policy,” although any such “policy” is unwritten
and its exact boundaries are unclear.
No. 16‐3522 3
court’s decision to deny the motion to dismiss. However, we
decline this invitation, as the two orders were not inextricably
intertwined and we can review the grant of the preliminary
injunction without reviewing the denial of the motion to dismiss.
The School District also argues that we should reverse the
district court’s decision to grant the preliminary injunction for
two main reasons. First, it argues that the district court erred
in finding that Ash had demonstrated a likelihood of success
on the merits because transgender status is neither a protected
class under Title IX nor is it entitled to heightened scrutiny.
And, because the School District’s policy has a rational basis,
that is, the need to protect other students’ privacy, Ash’s
claims fail as a matter of law. We reject these arguments because
Ash has sufficiently demonstrated a likelihood of success
on his Title IX claim under a sex‐stereotyping theory. Further,
because the policy’s classification is based upon sex, he
has also demonstrated that heightened scrutiny, and not rational
basis, should apply to his Equal Protection Claim. The
School District has not provided a genuine and exceedingly
persuasive justification for the classification.
Second, the School District argues that the district court
erred in finding that the harms to Ash outweighed the harms
to the student population and their privacy interests. We disagree.
The School 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 School District
are all speculative and based upon conjecture, whereas
the harms to Ash are well‐documented and supported by the
record. As a consequence, we affirm the grant of preliminary
injunctive relief.
4 No. 16‐3522
I. BACKGROUND
Ash Whitaker is a 17 year‐old who lives in Kenosha, Wisconsin
with his mother, who brought this suit as his “next
friend.”3 He is currently a senior at George Nelson Tremper
High School, which is in the Kenosha Unified School District.
He entered his senior year ranked within the top five percent
of his class and is involved in a number of extracurricular activities
including the orchestra, theater, tennis, the National
Honor Society, and the Astronomical Society. When not in oschool
or participating in these activities, Ash works part‐time
as an accounting assistant in a medical office.
While Ash’s birth certificate designates him as “female,”
he does not identify as one. Rather, in the spring of 2013, when
Ash was in eighth grade, he told his parents that he is
transgender and a boy. He began to openly identify as a boy
during the 2013‐2014 school year, when he entered Tremper
as a freshman. He cut his hair, began to wear more masculine
clothing, and began to use the name Ashton and male pronouns.
In the fall of 2014, the beginning of his sophomore
year, he told his teachers and his classmates that he is a boy
and asked them to refer to him as Ashton or Ash and to use
male pronouns.
In addition to publicly transitioning, Ash began to see a
therapist, who diagnosed him with Gender Dysphoria, which
the American Psychiatric Association defines as “a marked
incongruence between one’s experienced/expressed gender
3 Because Ash is a minor without a duly appointed representative,
pursuant to Rule 17 of the Federal Rules of Civil Procedure, he may assert
these claims only through a “next friend” or guardian ad litem.
No. 16‐3522 5
and assigned gender … .”4 Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 452 (5th ed. 2013). In July
2016, under the supervision of an endocrinologist at Children’s
Hospital of Wisconsin, Ash began hormone replacement
therapy. A month later, he filed a petition to legally
change his name to Ashton Whitaker, which was granted in
September 2016.
For the most part, Ash’s transition has been met without
hostility and has been accepted by much of the Tremper community.
At an orchestra performance in January 2015, for example,
he wore a tuxedo like the rest of the boys in the group.
His orchestra teacher, classmates, and the audience accepted
this without incident. Unfortunately, the School District has
not been as accepting of Ash’s requests to use the boys’ restrooms.
In the spring of his sophomore year, Ash and his mother
met with his guidance counselor on several occasions to request
that Ash be permitted to use the boys’ restrooms while
at school and at school‐sponsored events. Ash was later notified
that the administration had decided that he could only
use the girls’ restrooms or a gender‐neutral restroom that was
in the school’s main office, which was quite a distance from
his classrooms. Because Ash had publicly transitioned, he believed
that using the girls’ restrooms would undermine his
transition. Additionally, since Ash was the only student who
was permitted to use the gender‐neutral bathroom in the
school’s office, he feared that using it would draw further attention
to his transition and status as a transgender student at
4 We take judicial notice of the Diagnostic and Statistical Manual pursuant
to Rule 201 of the Federal Rules of Evidence.
6 No. 16‐3522
Tremper. As a high schooler, Ash also worried that he might
be disciplined if he tried to use the boys’ restrooms and that
such discipline might hurt his chances of getting into college.
For these reasons, Ash restricted his water intake and attempted
to avoid using any restroom at school for the rest of
the school year.
Restricting his water intake was problematic for Ash, who
has been diagnosed with vasovagal syncope. This condition
renders Ash more susceptible to fainting and/or seizures if dehydrated.
To avoid triggering the condition, Ash’s physicians
have advised him to drink six to seven bottles of water and a
bottle of Gatorade daily. Because Ash restricted his water intake
to ensure that he did not have to utilize the restroom at
school, he suffered from symptoms of his vasovagal syncope,
including fainting and dizziness. He also suffered from stressrelated
migraines, depression, and anxiety because of the policy’s
impact on his transition and what he perceived to be the
impossible choice between living as a boy or using the restroom.
He even began to contemplate suicide.
In the fall of 2015, Ash began his junior year at Tremper.
For six months, he exclusively used the boys’ restrooms at
school without incident. But, in February 2016, a teacher saw
him washing his hands at a sink in the boys’ restroom and
reported it to the school’s administration. In response, Ash’s
guidance counselor, Debra Tronvig, again told Ash’s mother
that he was permitted to only use the girls’ restrooms or the
gender‐neutral bathroom in the school’s main office. The next
month, Ash and his mother met with Assistant Principal
Holly Graf to discuss the school’s policy. Like before, Ms. Graf
stated that Ash was not permitted to use the boys’ restrooms.
However, the reason she gave this time was that he was listed
No. 16‐3522 7
as a female in the school’s official records and to change those
records, the school needed unspecified “legal or medical documentation.”
Two letters submitted by Ash’s pediatrician, identifying
him as a transgender boy and recommending that he be allowed
to use male‐designated facilities at school were
deemed not sufficient to change his designation. Rather, the
school maintained that Ash would have to complete a surgical
transition … a procedure that is prohibited for someone
under 18 years of age … to be permitted access to the boys’
restroom. Further, not all transgender persons opt to complete
a surgical transition, preferring to forgo the significant
risks and costs that accompany such procedures. The School
District did not give any explanation as to why a surgical transition
was necessary. Indeed, the verbal statements made to
Ash’s mom about the policy have never been reduced to writing.
In fact, the School District has never provided any written
document that details when the policy went into effect, what
the policy is, or how one can change his status under the policy.
Fearing that using the one gender‐neutral restroom would
single him out and subject him to scrutiny from his classmates
and knowing that using the girls’ restroom would be in contradiction
to his transition, Ash continued to use the boys’ restroom
for the remainder of his junior year.
This decision was not without a cost. Ash experienced
feelings of anxiousness and depression. He once more began
to contemplate suicide. Nonetheless, the school’s security
guards were instructed to monitor’s Ash’s restroom use to ensure
that he used the proper facilities. Because Ash continued
8 No. 16‐3522
to use the boys’ restroom, he was removed from class on several
occasions to discuss his violation of the school’s unwritten
policy. His classmates and teachers often asked him about
these meetings and why administrators were removing him
from class.
In April 2016, the School District provided Ash with the
additional option of using two single‐user, gender‐neutral restrooms.
These locked restrooms were on the opposite side of
campus from where his classes were held. The School District
provided only one student with the key: Ash. Since the restrooms
were not near his classrooms, which caused Ash to
miss class time, and because using them further stigmatized
him, Ash again avoided using the bathrooms while at school.
This only exacerbated his syncope and migraines. In addition,
Ash began to fear for his safety as more attention was drawn
to his restroom use and transgender status.
Although not part of this appeal, Ash contends that he has
also been subjected to other negative actions by the School
District, including initially prohibiting him from running for
prom king, referring to him with female pronouns, using his
birth name, and requiring him to room with female students
or alone on school‐sponsored trips. Furthermore, Ash learned
in May 2016 that school administrators had considered instructing
its guidance counselors to distribute bright green
wristbands to Ash and other transgender students so that
their bathroom usage could be monitored more easily.
Throughout this litigation, the School District has denied that
it considered implementing the wristband plan.
No. 16‐3522 9
A. Proceedings Below
In the spring of 2016, Ash engaged counsel who, in April
2016, sent the School District a letter demanding that it permit
him to use the boys’ restroom while at school and during
school‐sponsored events. In response, the School District repeated
its policy that Ash was required to use either the girls’
restroom or the gender‐neutral facilities. On May 12, 2016,
Ash filed an administrative complaint with the United States
Department of Education’s Office for Civil Rights, alleging
that this policy violated his rights under Title IX. To pursue
the instant litigation, Ash chose to withdraw the complaint
without prejudice.
On July 16, 2016, Ash commenced this action and on August
15, he filed an Amended Complaint alleging that the
treatment he received at Tremper High School violated Title
IX, 20 U.S.C. §1681, et seq., and the Equal Protection Clause of
the Fourteenth Amendment. That same day, Ash, in a motion
for preliminary injunction, sought to enjoin the enforcement
of the School District’s policy pending the outcome of the litigation.
The next day, the School District filed a motion to dismiss
and filed its opposition to the preliminary injunction
shortly thereafter.
After a hearing on the motion to dismiss, the district court
denied the motion. The next day, it heard oral arguments on
Ash’s motion for preliminary injunction. A few days later, the
district court granted the motion in part and enjoined the
School District from: (1) denying Ash access to the boys’ restroom;
(2) enforcing any written or unwritten policy against
Ash that would prevent him from using the boys’ restroom
while on school property or attending school‐sponsored
events; (3) disciplining Ash for using the boys’ restroom while
10 No. 16‐3522
on school property or attending school‐sponsored events; and
(4) monitoring or surveilling Ash’s restroom use in any way.
This appeal followed.
In a separate appeal, the School District petitioned this
court for permission to file an interlocutory appeal of the district
court’s denial of its motion to dismiss. Although initially
the district court certified the order denying the motion to dismiss
for immediate interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), it revoked that certification when it concluded that
it had erred by including the certification language in its initial
order. Therefore, we denied the School District’s petition
for interlocutory review of the motion to dismiss for lack of
jurisdiction. See Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v.
Whitaker, 841 F.3d 730, 731–32 (7th Cir. 2016). In the alternative,
the School District urged this court to exercise pendent
jurisdiction over the order denying the motion to dismiss because
the district court had partially granted the preliminary
injunction. But since we lacked jurisdiction to consider the petition
for interlocutory appeal, we also lacked a proper jurisdictional
basis for extending pendent jurisdiction. Id. at 732.
Therefore, in this appeal, the School District was directed to
seek pendent appellate jurisdiction, which it has now done.
II. ANALYSIS
The School District raises two issues on appeal. First, that
this court should assert pendent jurisdiction over the district
court’s decision to deny its motion to dismiss and second, that
the district court erred in granting Ash’s motion for preliminary
injunction. We will address each issue in turn.
No. 16‐3522 11
A. Pendent Jurisdiction Is Not Appropriate
Ordinarily, an order denying a motion to dismiss is not a
final judgment and is not appealable. See 28 U.S.C. § 1291
(providing federal appellate courts with jurisdiction over appeals
from all final decisions). But, the School District again
urges us to assert pendent appellate jurisdiction to consider
the denial of the motion to dismiss. We decline the invitation.
Pendent appellate jurisdiction is a discretionary doctrine.
Jones v. InfoCure Corp., 310 F.3d 529, 537 (7th Cir. 2002). It is
also a narrow one, Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th
Cir. 2012), which the Supreme Court sharply restricted in
Swint v. Chambers County Commission, 514 U.S. 35 (1995). After
Swint, we noted in United States v. Board of School Commissioners
of the City of Indianapolis, 128 F.3d 507 (7th Cir. 1997), that
pendent appellate jurisdiction is a “controversial and embattled
doctrine.” Id. at 510. Nonetheless, the Supreme Court recognized
a narrow path for its use in Clinton v. Jones, 520 U.S.
681, 707 n.41 (1997), where it found that a collateral order
denying presidential immunity was inextricably intertwined
with an order that stayed discovery and postponed trial, and
was therefore, reviewable on appeal.
When applicable, the doctrine allows for review of an
“otherwise unappealable interlocutory order if it is inextricably
intertwined with an appealable one.” Montano v. City of
Chicago, 375 F.3d 593, 599 (7th Cir. 2004) (quoting Jones, 310
F.3d at 536) (internal quotation marks omitted). This requires
more than a “close link” between the two orders. Id. at 600.
Judicial economy is also an insufficient justification for invoking
the doctrine and disregarding the final‐judgment rule.
McCarter v. Ret. Plan for Dist. Managers of Am. Family Ins. Grp.,
12 No. 16‐3522
540 F.3d 649, 653 (7th Cir. 2008). Rather, we must satisfy ourselves
that based upon the specific facts of this case, it is “practically
indispensable that we address the merits of the unappealable
order in order to resolve the properly‐taken appeal.”
Montano, 375 F.3d at 600 (quoting United States ex rel. Valders
Stone & Marble, Inc. v. C‐Way Constr. Co., 909 F.2d 259, 262 (7th
Cir. 1990)) (internal quotation marks omitted); see also Abelesz,
692 F.3d at 647 (“[P]endent appellate jurisdiction should not
be stretched to appeal normally unappealable interlocutory
orders that happen to be related—even closely related—to the
appealable order.”). Such a high threshold is required because
a more relaxed approach would allow the doctrine to swallow
the final‐judgment rule. Montano, 375 F.3d at 599 (citing Patterson
v. Portch, 853 F.2d 1399, 1403 (7th Cir. 1988)).
As we discuss below, the district court determined that
Ash sufficiently demonstrated a likelihood of success on the
merits of his claims and that preliminary injunctive relief was
warranted. In doing so, the district court referenced its decision
to deny the School District’s motion to dismiss. The
School District contends that this rendered the two decisions
inextricably intertwined. Therefore, it reasons that pendent
jurisdiction is appropriate because to engage in a meaningful
review of the preliminary injunction order, the court must
also review the denial of the motion to dismiss.
Merely referencing the earlier decision to deny the motion
to dismiss, however, did not inextricably intertwine the two
orders. Certainly the legal issues raised in the motions overlapped,
as both motions challenged, in different ways and under
different standards, the likely merits of Ash’s claim. Invoking
pendent jurisdiction simply because of this overlap
would essentially convert a motion for preliminary injunctive
No. 16‐3522 13
relief into a motion to dismiss, which would raise the threshold
showing a plaintiff must make before receiving injunctive
relief. For all practical purposes, this would mean that every
time a motion to dismiss is filed simultaneously with a motion
for preliminary injunction, this doctrine would apply. This
makes no sense and we do not see a compelling reason for
invoking the doctrine here.
B. Preliminary Injunctive Relief Was Proper
A preliminary injunction is an extraordinary remedy. See
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States
of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008) (noting that “a
preliminary injunction is an exercise of a very far‐reaching
power, never to be indulged in except in a case clearly demanding
it.”) (internal quotation marks and citation omitted).
It is never awarded as a matter of right. D.U. v. Rhoades, 825
F.3d 331, 335 (7th Cir. 2016). We review the grant of a preliminary
injunction for the abuse of discretion, reviewing legal
issues de novo, Jones v. Markiewicz‐Qualkinbush, 842 F.3d 1053,
1057 (7th Cir. 2016), while factual findings are reviewed for
clear error. Fed. Trade Commʹn v. Advocate Health Care Network,
841 F.3d 460, 467 (7th Cir. 2016). Substantial deference is given
to the district court’s “weighing of evidence and balancing of
the various equitable factors.” Turnell v. CentiMark Corp., 796
F.3d 656, 662 (7th Cir. 2015).
A two‐step inquiry applies when determining whether
such relief is required. Id. at 661. First, the party seeking the
preliminary injunction has the burden of making a threshold
showing: (1) that he will suffer irreparable harm absent preliminary
injunctive relief during the pendency of his action;
(2) inadequate remedies at law exist; and (3) he has a reasonable
likelihood of success on the merits. Id. at 661–62. If the
14 No. 16‐3522
movant successfully makes this showing, the court must engage
in a balancing analysis, to determine whether the balance
of harm favors the moving party or whether the harm to
other parties or the public sufficiently outweighs the movant’s
interests. Jones, 842 F.3d at 1058.
1. Ash Likely to Suffer Irreparable Harm
The moving party must demonstrate that he will likely
suffer irreparable harm absent obtaining preliminary injunctive
relief. See Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d
765, 787 (7th Cir. 2011). This requires more than a mere possibility
of harm. Id. at 788. It does not, however, require that the
harm actually occur before injunctive relief is warranted. Id.
Nor does it require that the harm be certain to occur before a
court may grant relief on the merits. Id. Rather, harm is considered
irreparable if it “cannot be prevented or fully rectified
by the final judgment after trial.” Girl Scouts of Manitou Council,
Inc., 549 F.3d at 1089 (quoting Roland Mach. Co. v. Dresser
Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)) (internal quotation
marks omitted). Because a district court’s determination
regarding irreparable harm is a factual finding, it is reviewed
for clear error. Id. at 1087.
On appeal, the School District argues that the district court
erred in finding that Ash established that he would suffer irreparable
harm absent a preliminary injunction. Although
Ash proffered reports from two different experts regarding
the harm caused to him by the School District’s policy, the
School District contends that neither expert was able to actually
quantify this harm. Further, the School District notes that
Ash’s failure to take advantage of “readily available alternatives,”
namely the gender‐neutral bathrooms, undermines his
claim of irreparable harm. Lastly, the School District points to
No. 16‐3522 15
Ash’s delay in seeking injunctive relief as indicative of the
lack of irreparable harm.
The School District’s arguments miss the point. The district
court was presented with expert opinions that supported
Ash’s assertion that he would suffer irreparable harm absent
preliminary relief. These experts opined that use of the boys’
restrooms is integral to Ash’s transition and emotional wellbeing.
Dr. Stephanie Budge, a psychologist who specializes in
working with adolescents and adults who have Gender Dysphoria,
met with Ash and his mother, and in her report noted
that the treatment Ash faced at school “significantly and negatively
impacted his mental health and overall well‐being.”
Dr. Budge also noted that Ash reported current thoughts
of suicide and that his depression worsened each time he had
to meet with school officials regarding his bathroom usage.
Ultimately, she opined that the School District’s actions, including
its bathroom policy, which identified Ash as
transgender and therefore, “different,” were “directly causing
significant psychological distress and place [Ash] at risk for
experiencing life‐long diminished well‐being and life‐functioning.”
The district court did not clearly err in relying upon
these findings when it concluded that Ash would suffer irreparable
harm absent preliminary injunctive relief.
Further, the School District’s argument that Ash’s harm
was self‐inflicted because he chose not to use the gender‐neutral
restrooms, fails to comprehend the harm that Ash has
identified. The School District actually exacerbated the harm,
when it dismissed him to a separate bathroom where he was
the only student who had access. This action further stigmatized
Ash, indicating that he was “different” because he was
a transgender boy.
16 No. 16‐3522
Moreover, the record demonstrates that these bathrooms
were not located close to Ash’s classrooms. Therefore, he was
faced with the unenviable choice between using a bathroom
that would further stigmatize him and cause him to miss class
time, or avoid use of the bathroom altogether at the expense
of his health.
Additionally, Ash alleged that using the single‐user restrooms
actually invited more scrutiny and attention from his
peers, who inquired why he had access to these restrooms and
asked intrusive questions about his transition. This further intensified
his depression and anxiety surrounding the School
District’s policy. Therefore, it cannot be said that the harm
was “self‐inflicted.”
Finally, Ash did not delay in seeking injunctive relief. He
had used the boys’ bathroom for months without incident,
and he filed an administrative complaint with the Department
of Education in April 2016, just weeks after the school
began to enforce its policy once more. He made the decision
to withdraw that complaint over the summer and commence
the instant litigation instead so that he could pursue injunctive
relief prior to beginning his senior year. It is important to
note that Ash was on summer break and not subject to the
School District’s bathroom policy at the time he chose to pursue
the litigation. Therefore, Ash’s decision to seek injunctive
relief over the summer rather than initiate an administrative
complaint does not undermine his argument that the policy
was inflicting, and would continue to inflict, irreparable
harm.
No. 16‐3522 17
2. No Adequate Remedies at Law
The moving party must also demonstrate that he has no
adequate remedy at law should the preliminary injunction
not issue. Protamek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808,
813 (7th Cir. 2002). This does not require that he demonstrate
that the remedy be wholly ineffectual. Foodcomm Intʹl v. Barry,
328 F.3d 300, 304 (7th Cir. 2003). Rather, he must demonstrate
that any award would be “seriously deficient as compared to
the harm suffered.” Id.
While the School District focuses the majority of its arguments
on why Ash’s harm is not irreparable, it also argues
that any harm he has allegedly suffered can be remedied by
monetary damages. We are not convinced. While monetary
damages are used to compensate plaintiffs in tort actions, in
those situations the damages relate to a past event, where the
harm was inflicted on the plaintiff through negligence or
something comparable. But this case is not the typical tort action,
as Ash has alleged prospective harm. He has asserted that
the policy caused him to contemplate suicide, a claim that was
credited by the expert report of Dr. Budge. We cannot say that
this potential harm—his suicide—can be compensated by
monetary damages. Nor is there an adequate remedy for preventable
“life‐long diminished well‐being and life‐functioning.”
Therefore, we reject the School District’s analogy to tort
damages and find that Ash adequately established that there
was no adequate remedy of law available.
3. Likelihood of Success on Merits
A party moving for preliminary injunctive relief need not
demonstrate a likelihood of absolute success on the merits. Instead,
he must only show that his chances to succeed on his
18 No. 16‐3522
claims are “better than negligible.” Cooper v. Salazar, 196 F.3d
809, 813 (7th Cir. 1999). This is a low threshold. U.S. Army
Corps of Eng’rs, 667 F.3d at 782. Ash’s Amended Complaint
contains two claims—one pursuant to Title IX and the other
pursuant to the Equal Protection Clause of the Fourteenth
Amendment. We will discuss each claim in turn.
i. Title IX Claim
Title IX provides that no person “shall, on the basis of sex,
be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any educational program
or activity receiving Federal financial assistance … .” 20
U.S.C. § 1681(a); see also 34 C.F.R. § 106.31(a). Covered institutions
are, therefore, among other things, prohibited from: (1)
providing different aid, benefits, or services; (2) denying aid,
benefits, or services; and (3) subjecting any person to separate
or different rules, sanctions, or treatment on the basis of sex.
See 34 C.F.R. § 106.31(b)(2)–(4). Pursuant to the statute’s regulations,
an institution may provide separate, but comparable,
bathroom, shower, and locker facilities. Id. § 106.33. The parties
agree that the School District receives federal funds and
is a covered institution.
The parties’ dispute focuses on the coverage of Title IX and
whether under the statute, a transgender student who alleges
discrimination on the basis of his or her transgender status
can state a claim of sex discrimination. Neither the statute nor
the regulations define the term “sex.” Also absent from the
statute is the term “biological,” which the School District
maintains is a necessary modifier. Therefore, we turn to the
Supreme Court and our case law for guidance.
No. 16‐3522 19
First, under our own case law, we do not see a barrier to
Ash’s Title IX claim. Although not as often as some of our sister
circuits, this court has looked to Title VII when construing
Title IX. See e.g., Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d
1014, 1023 (7th Cir. 1997) (noting that “it is helpful to look to
Title VII to determine whether the alleged sexual harassment
is severe and pervasive enough to constitute illegal discrimination
on the basis of sex for purposes of Title IX.”). The
School District contends that we should do so here, and relies
on our reasoning in Ulane v. Eastern Airlines, Inc., 742 F.2d
1081 (7th Cir. 1984), to conclude that Ash cannot state a claim
under Title IX as a matter of law. Other courts have agreed
with the School District’s position. See Etsitty v. Utah Transit
Auth., 502 F.3d 1215, 1221 (10th Cir. 2007) (relying upon Ulane
to find that transsexuals are not a protected class under Title
VII); Johnston v. Univ. of Pittsburgh of Commw. Sys. of Higher
Educ., 97 F. Supp. 3d 657, 675–76 (W.D. Pa. 2015) (relying upon
Ulane to find that a transgender student cannot state a claim
under Title IX). We disagree.
In Ulane, we noted in dicta that Title VII’s prohibition on
sex discrimination “implies that it is unlawful to discriminate
against women because they are women and against men because
they are men.” 742 F.2d at 1085. We then looked to the
lack of legislative history regarding the meaning of the term
“sex” in Title VII and concluded that this prohibition should
be “given a narrow, traditional interpretation, which would
also exclude transsexuals.” Id. at 1085–86. This reasoning,
however, cannot and does not foreclose Ash and other
transgender students from bringing sex‐discrimination
claims based upon a theory of sex‐stereotyping as articulated
four years later by the Supreme Court in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989).
20 No. 16‐3522
In Price Waterhouse, a plurality of the Supreme Court and
two justices concurring in the judgment, found that the plaintiff
had adequately alleged that her employer, in violation of
Title VII, had discriminated against her for being too masculine.
The plurality further emphasized that “we are beyond
the day when an employer could evaluate employees by assuming
or insisting that they matched the stereotype associated
with their group.” Id. at 251. Thus, the Court embraced a
broad view of Title VII, as Congress “intended to strike at the
entire spectrum of disparate treatment of men and women resulting
from sex stereotypes.” Id.; see also Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (“In forbidding
employers to discriminate against individuals because of
their sex, Congress intended to strike at the entire spectrum
of disparate treatment of men and women resulting from sex
stereotypes.”).
The Supreme Court further embraced an expansive view
of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75 (1998), where Justice Scalia, writing for a unanimous
Court, declared that “statutory prohibitions often go beyond
the principal evil to cover reasonably comparable evils, and it
is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.”
Id. at 79.
Following Price Waterhouse, this court and others have recognized
a cause of action under Title VII when an adverse action
is taken because of an employee’s failure to conform to
sex stereotypes. See, e.g., Doe v. City of Belleville, 119 F.3d 563,
580–81 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001
(1998); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 201 (2d
Cir. 2017); Bibby v. Phila. Coca‐Cola Bottling Co., 260 F.3d 257,
No. 16‐3522 21
263‐64 (3d Cir. 2001); Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 874–75 (9th Cir. 2001); Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999). Our most recent
application occurred when, sitting en banc, we held that a homosexual
plaintiff can state a Title VII claim of sex discrimination
based upon a theory of sex‐stereotyping. Hively v. Ivy
Tech Cmty. Coll. of Ind., 853 F.3d 339, 351–52 (7th Cir. 2017)
(holding that a homosexual plaintiff may state a claim for sexbased
discrimination under Title VII under either a sex stereotyping
theory or under the associational theory).
The School District argues that even under a sex‐stereotyping
theory, Ash cannot demonstrate a likelihood of success
on his Title IX claim because its policy is not based on whether
the student behaves, walks, talks, or dresses in a manner that
is inconsistent with any preconceived notions of sex stereotypes.
Instead, it contends that as a matter of law, requiring a
biological female to use the women’s bathroom is not sex‐stereotyping.
However, this view is too narrow.
By definition, a transgender individual does not conform
to the sex‐based stereotypes of the sex that he or she was assigned
at birth. We are not alone in this belief. See Glenn v.
Brumby, 663 F.3d 1312 (11th Cir. 2011). In Glenn, the Eleventh
Circuit noted that “[a] person is defined as transgender precisely
because of the perception that his or her behavior transgresses
gender stereotypes.” Id. at 1316. The Eleventh Circuit
reiterated this conclusion in a per curiam unpublished opinion,
noting that “sex discrimination includes discrimination
against a transgender person for gender nonconformity.”
Chavez v. Credit Nation Auto Sales, LLC, 641 F. Appʹx 883, 884
(11th Cir. 2016) (unpub.).
22 No. 16‐3522
The Sixth Circuit has also recognized a transgender plaintiff’s
ability to bring a sex‐stereotyping claim. In Smith v. City
of Salem 378 F.3d 566 (6th Cir. 2004), the plaintiff was diagnosed
with Gender Identity Disorder, a condition later renamed
Gender Dysphoria. Born a male, the plaintiff began to
present at work with a more feminine appearance and mannerisms.
He5 alleged in his complaint that as a result, his employer
schemed to take action against him and ultimately subjected
him to a pretextual suspension in violation of Title VII.
While the district court concluded that because the plaintiff
was transsexual he was not entitled to Title VII’s protections,
the Sixth Circuit disagreed.
Instead, the Sixth Circuit noted that Price Waterhouse established
that the prohibition on sex discrimination “encompasses
both the biological differences between men and
women, and gender discrimination, that is, discrimination
based on a failure to conform to stereotypical gender norms.”
Id. at 573 (citing Price Waterhouse, 490 U.S. at 251). If Title VII
prohibits an employer from discriminating against a woman
for dressing too masculine, then, the court reasoned, Title VII
likewise prohibits an employer from discriminating against a
man who dresses in a way that it perceives as too feminine. In
both examples the discrimination would not occur but for the
victim’s sex, in violation of Title VII. Id. at 574. Therefore, the
plaintiff’s status as transsexual was not a bar to his claim.
Several district courts have adopted this reasoning, finding
that a transgender plaintiff can state a claim under Title
5 We will use the masculine pronoun to refer to the Smith plaintiff for
the purpose of clarity, as this is how the Sixth Circuit referred to the Smith
plaintiff throughout its opinion.
No. 16‐3522 23
VII for sex discrimination on the basis of a sex‐stereotyping
theory. See Valentine Ge v. Dun & Bradstreet, Inc., No. 6:15‐CV‐
1029‐ORL‐41GJK, 2017 WL 347582, at *4 (M.D. Fla. Jan. 24,
2017); Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014
(D. Nev. 2016), reconsideration denied, No. 2:15‐CV‐00388‐JADPAL,
2016 WL 6986346 (D. Nev. Nov. 28, 2016); Fabian v. Hosp.
of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016);
E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp.
3d 594, 603 (E.D. Mich. 2015); Lopez v. River Oaks Imaging &
Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008);
Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).
Further, courts have applied Price Waterhouse and found that
transgender plaintiffs can state claims based upon a sex‐stereotyping
theory under the Gender Motivated Violence Act,
Schwenk v. Hartford, 204 F.3d 1187, 1200 (9th Cir. 2000), and
the Equal Credit Opportunity Act, Rosa v. Park W. Bank &
Trust Co. 214 F.3d 213, 215–16 (1st Cir. 2000).
Here, however, the School District argues that this reasoning
flies in the face of Title IX, as Congress has not explicitly
added transgender status as a protected characteristic to either
Title VII or Title IX, despite having opportunities to do
so. See e.g., Student Non‐Discrimination Act of 2015 S. 439
114th Cong. (2015). The Supreme Court has rejected this argument,
stating that congressional inaction “lacks persuasive
significance because several equally tenable inferences may
be drawn from such inaction, including the inference that the
existing legislation already incorporated the offered change.”
Pension Benefit. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650
(1990) (quoting United States v. Wise, 370 U.S. 405, 411 (1962))
(internal quotation marks omitted); see also Hively, 853 F.3d at
344 (“[I]t is simply too difficult to draw a reliable inference
from these truncated legislative initiatives to rest our opinion
24 No. 16‐3522
on them.”). Therefore, Congressional inaction is not determinative.
Rather, Ash can demonstrate a likelihood of success on the
merits of his claim because he has alleged that the School District
has denied him access to the boys’ restroom because he
is transgender. 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 School 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 School District from
liability, as it is the policy itself which violates the Act. Further,
based on the record here, these gender‐neutral alternatives
were not true alternatives because of their distant location
to Ash’s classrooms and the increased stigmatization
they caused Ash. Rather, the School District only continued to
treat Ash differently when it provided him with access to
these gender‐neutral bathrooms because he was the only student
given access.
And, while the School District repeatedly asserts that Ash
may not “unilaterally declare” his gender, this argument misrepresents
Ash’s claims and dismisses his transgender status.
This is not a case where a student has merely announced that
he is a different gender. Rather, Ash has a medically diagnosed
and documented condition. Since his diagnosis, he has
consistently lived in accordance with his gender identity. This
law suit demonstrates that the decision to do so was not without
cost or pain. Therefore, we find that Ash has sufficiently
No. 16‐3522 25
established a probability of success on the merits of his Title
IX claim.
ii. Equal Protection Claim
Although we are mindful of our duty to avoid rendering
unnecessary constitutional decisions, ISI Intʹl, Inc. v. Borden
Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001), as
amended (July 2, 2001), we will address Ash’s Equal Protection
claim as the district court determined that Ash also demonstrated
an adequate probability of success on the claim to justify
the preliminary injunction. The Equal Protection Clause
of the Fourteenth Amendment “is essentially a direction that
all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing
Plyler v. Doe, 457 U.S. 202, 216 (1982)). It therefore, protects
against intentional and arbitrary discrimination. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
Generally, state action is presumed to be lawful and will be
upheld if the classification drawn by the statute is rationally
related to a legitimate state interest. City of Cleburne, 473 U.S.
at 440.
The rational basis test, however, does not apply when a
classification is based upon sex. Rather, a sex‐based classification
is subject to heightened scrutiny, as sex “frequently bears
no relation to the ability to perform or contribute to society.”
Id. at 440–41 (quoting Frontiero v. Richardson, 411 U.S. 677, 686
(1973)) (internal quotation marks omitted); see also J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, 135 (1994). When a sex‐based
classification is used, the burden rests with the state to
demonstrate that its proffered justification is “exceedingly
persuasive.” United States v. Virginia, 518 U.S. 515, 533 (1996);
see also Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743
26 No. 16‐3522
F.3d 569, 577 (7th Cir. 2014). This requires the state to show
that the “classification serves important governmental objectives
and that the discriminatory means employed are substantially
related to the achievement of those objectives.“ Virginia,
518 U.S. at 524 (internal quotation marks omitted). It is
not sufficient to provide a hypothesized or post hoc justification
created in response to litigation. Id. at 533. Nor may the
justification be based upon overbroad generalizations about
sex. Id. Instead, the justification must be genuine. Id.
If a state actor cannot defend a sex‐based classification by
relying upon overbroad generalizations, it follows that sexbased
stereotypes are also insufficient to sustain a classification.
See J.E.B., 511 U.S. at 138 (rejecting the state’s reliance on
sex‐based stereotypes as a defense to the discriminatory use
of peremptory challenges during jury selection); see Glenn v.
Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (“All persons,
whether transgender or not, are protected from discrimination
on the basis of gender stereotype.”).
As a threshold matter, we must determine what standard
of review applies to Ash’s claim. The School District urges us
to apply the rational basis test, arguing that transgender status
is not a suspect class. Applying that test, the School District
contends that its policy is presumptively constitutional
and that requiring students to use facilities corresponding to
their birth sex to protect the privacy of all students is a rational
basis for its policy. So, the School District maintains that Ash
cannot demonstrate a likelihood of success on his Equal Protection
Claim.
Ash disagrees. He argues that transgender status should
be entitled to heightened scrutiny in its own right, as
transgender people are a minority who have historically been
No. 16‐3522 27
subjected to discrimination based upon the immutable characteristics
of their gender identities. Alternatively, he argues
that even if transgender status is not afforded heightened
scrutiny in its own right, the School District’s bathroom policy
creates a sex‐based classification such that heightened scrutiny
should apply.
There is no denying that transgender individuals face discrimination,
harassment, and violence because of their gender
identity. According to a report issued by the National Center
for Transgender Equality, 78% of students who identify as
transgender or as gender non‐conformant, report being harassed
while in grades K‐12. See Jaime M. Grant et al., Injustice
at Every Turn: A Report of the National Transgender Discrimination
Survey, Natʹl Center for Transgender Equality, at 33
(2011), available at http://www.transequality.org/sites/default/
files/docs/resources/NTDS_Report.pdf. These same individuals
in K‐12 also reported an alarming rate of assault,
with 35% reporting physical assault and 12% reporting sexual
assault. Id. As a result, 15% of transgender and gender nonconformant
students surveyed made the decision to drop out.
Id. These statistics are alarming. But this case does not require
us to reach the question of whether transgender status is per
se entitled to heightened scrutiny. It is enough to stay that,
just as in Price Waterhouse, the record for the preliminary injunction
shows sex stereotyping. We note as well that there is
no requirement that every girl, or every boy, be subjected to
the same stereotyping. It is enough that Ash has experienced
this form of sex discrimination.
Here, the School District’s policy cannot be stated without
referencing sex, as the School District decides which bath28
No. 16‐3522
room a student may use based upon the sex listed on the student’s
birth certificate. This policy is inherently based upon a
sex‐classification and heightened review applies. Further, the
School 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 School 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 School District’s bathroom
policy if they choose to use a bathroom that conforms to their
gender identity. This places the burden on the School District
to demonstrate that its justification for its bathroom policy is
not only genuine, but also “exceedingly persuasive.” See Virginia,
518 U.S. at 533. This burden has not been met here.
The School District defends its bathroom policy by claiming
it needs to protect the privacy rights of all 22,160 students.
6 The mere presence of a transgender student in the
bathroom, the School District argues, infringes upon the privacy
rights of other students with whom he or she does not
share biological anatomy. While this court certainly recognizes
that the School District has a legitimate interest in ensuring
bathroom privacy rights are protected, this interest
must be weighed against the facts of the case and not just examined
in the abstract, to determine whether this justification
is genuine.
6 We note that the School District’s reliance upon the privacy interests
of all of its 22,160 students is odd given that the preliminary injunction
order only pertains to Ash, a student at one of its high schools. Many of
the School District’s students attend schools other than Tremper and are
therefore, totally unaffected by the district court’s order.
No. 16‐3522 29
What the record demonstrates here is that the School District’s
privacy argument is based upon sheer conjecture and
abstraction. For nearly six months, Ash used the boys’ bathroom
while at school and school‐sponsored events without
incident or complaint from another student. In fact, it was
only when a teacher witnessed Ash washing his hands in the
restroom that his bathroom usage once more became an issue
in the School District’s eyes. And while at oral argument, the
School District asserted that it had received just one complaint
from a parent, this is insufficient to support its position that
its policy is required to protect the privacy rights of each and
every student. Counsel for the School District cited to Ash’s
Amended Complaint for this assertion. The Amended Complaint,
however, states that “some parents and other Kenosha
residents began to speak out in opposition to Ash’s right to
use the boys’ restrooms.” Am. Comp. ¶ 77. It further states
that several community members spoke at a School Board
meeting and voiced their opposition to a policy that would
allow transgender students to use gender‐appropriate restrooms.
See id. (“One parent told the Board that he was opposed
to permitting transgender students to use gender‐appropriate
restrooms … .”). Nonetheless, neither party has offered
any evidence or even alleged that the School District has
received any complaints from other students. This policy does
nothing to protect the privacy rights of each individual student
vis‐à‐vis students who share similar anatomy and it ignores
the practical reality of how Ash, as a transgender boy,
uses the bathroom: by entering a stall and closing the door.
A transgender student’s presence in the restroom provides
no more of a risk to other students’ privacy rights than
the presence of an overly curious student of the same biological
sex who decides to sneak glances at his or her classmates
30 No. 16‐3522
performing their bodily functions. Or for that matter, any
other student who uses the bathroom at the same time. 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. Nothing in the record suggests that the bathrooms
at Tremper High School are particularly susceptible to
an intrusion upon an individual’s privacy. 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. Therefore, this court agrees with the
district court that the School District’s privacy arguments are
insufficient to establish an exceedingly persuasive justification
for the classification.
Additionally, at oral argument, counsel for the School District
clarified that the only way that Ash would be permitted
to use the boys’ restroom would be if he were to present the
school with a birth certificate that designated his sex as male.
But it is important to keep in mind that the School District has
not provided a written copy of the policy. Nor is it clear that
one even exists. And, before this litigation, Ash’s mother was
never told that she needed to produce a birth certificate. Instead,
when she asked the School District to permit him to use
the boys’ restroom, the school’s assistant principal told her
that Ash could use the boys’ restroom only if his sex was
changed in the school’s official records. To do so, Ash would
need to submit unspecified legal or medical “documentation.”
Despite explaining to the assistant principal that Ash
No. 16‐3522 31
was too young to have sex‐reassignment surgery and presenting
the School District with two letters from Ash’s pediatrician,
Ash was still not allowed to use the boys’ restroom.
Further, it is unclear that the sex marker on a birth certificate
can even be used as a true proxy for an individual’s biological
sex. The marker does not take into account an individual’s
chromosomal makeup, which is also a key component
of one’s biological sex. Therefore, one’s birth certificate could
reflect a male sex, while the individual’s chromosomal
makeup reflects another. It is also unclear what would happen
if an individual is born with the external genitalia of two
sexes, or genitalia that is ambiguous in nature. In those cases,
it is clear that the marker on the birth certificate would not
adequately account for or reflect one’s biological sex, which
would have to be determined by considering more than what
was listed on the paper.
Moreover, while it is true that in Wisconsin an individual
may only change his or her designated sex on a birth certificate
after completing a surgical reassignment, see Wis. Stat.
Ann. § 69.15(4), this is not universally the case. For example,
as Ash’s counsel pointed out during oral argument, in Minnesota,
an individual may amend his or her birth certificate to
reflect his or her gender identity without surgical reassignment.
See Requirements for documents submitted to support the
amendment of a birth record, MINNESOTA DEP’T OF HEALTH,
http://www.health.state.mn.us/divs/chs/osr/reqdocs.html#gender
(last visited May 30, 2017). Therefore, a student who is born
in Minnesota and begins his transition there, obtaining a modified
birth certificate as part of the process, could move to Kenosha
and be permitted to use the boys’ restroom in one of
32 No. 16‐3522
the School District’s schools even though he retains female
anatomy.
Additionally, the policy fails to account for the fact that a
new student registering with the School District need not
even provide a birth certificate. Rather, the School District requires
that each new student provide either a birth certificate
or a passport. See Registration, KENOSHA UNIFIED SCH. DIST.,
http://www.kusd.edu/registration (last visited May 30, 2017).
Pursuant to the United States Department of State’s policies,
an individual may apply for and receive a passport that reflects
his or her gender identity by presenting a signed medical
certification from a physician. See Gender Designation
Change, U.S. DEP’T OF STATE, https://travel.state.gov/content/
passports/en/passports/information/gender.
html#change (last visited May 30, 2017). This process does
not require that an individual have undergone sex‐reassignment
surgery. Therefore, the School District’s reliance upon a
birth certificate’s sex‐marker demonstrates the arbitrary nature
of the policy; so, Ash has met the low threshold of
demonstrating a probability of success on his Equal Protection
Claim.
4. Balance of Harms Favors Ash
Having already determined that the district court did not
err in finding that Ash will suffer irreparable harm absent preliminary
injunctive relief, we now must look at whether
granting preliminary injunctive relief will harm the School
District and the public as a whole. Once a moving party has
met its burden of establishing the threshold requirements for
a preliminary injunction, the court must balance the harms
faced by both parties and the public as a whole. See Girl Scouts
of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549
No. 16‐3522 33
F.3d 1079, 1100 (7th Cir. 2008); see also Turnell v. CentiMark
Corp., 796 F.3d 656, 662 (7th Cir. 2015). This is done on a “sliding
scale” measuring the balance of harms against the moving
party’s likelihood of success. Turnell, 796 F.3d at 662. The
more likely he is to succeed on the merits, the less the scale
must tip in his favor. Id. The converse, however, also is true:
the less likely he is to win, the more the balance of harms must
weigh in his favor for an injunction to issue. Id. Substantial
deference is given to the district court’s analysis of the balancing
of harms. Id.
The School District argues that the district court erred in
determining that the balance of the harms weighed in favor
of granting the injunction because it ignored the fact that the
harm extends to 22,160 students in the School District whose
privacy rights are at risk by allowing a transgender student to
utilize a bathroom that does not correspond with his biological
sex. Granting the injunction, the School District continues,
also irreparably harmed these students’ parents, who are now
denied the right to direct the education and upbringing of
their children. Additionally, the School District asserts that
the injunction harms the public as a whole, since it forces
other school districts nationwide to contemplate whether they
must change their policies and alter their facilities or risk being
found out of compliance with Title IX. Noncompliance
places their federal funding at risk. Based upon this record,
however, we find the School District’s arguments unpersuasive.
The School District has not demonstrated that it will suffer
any harm from having to comply with the district court’s preliminary
injunction order. Nor has it established that the public
as a whole will suffer harm. As noted above, before seeking
34 No. 16‐3522
injunctive relief, Ash used the bathroom for nearly six months
without incident. The School District has not produced any evidence
that any students have ever complained about Ash’s
presence in the boys’ restroom. Nor have they demonstrated
that Ash’s presence has actually caused an invasion of any
other student’s privacy. And while the School District claims
that preliminary injunctive relief infringes upon parents’ ability
to direct the education of their children, it offers no evidence
that a parent has ever asserted this right. These claims
are all speculative.
We are further convinced that the district court did not err
in finding that this balance weighed in favor of granting the
injunction when considering the statements made by amici,
who are school administrators from twenty‐one states and the
District of Columbia. Together, these administrators are responsible
for educating approximately 1.4 million students.
Each administrator has experience implementing inclusive
bathroom policies in their respective schools, and each has
grappled with the same privacy concerns that the School District
raises here. These administrators uniformly agree that
the frequently‐raised and hypothetical concerns about a policy
that permits a student to utilize a bathroom consistent
with his or her gender identity have simply not materialized.
Rather, in their combined experience, all students’ needs are
best served when students are treated equally.
Although the School District argues that implementing an
inclusive policy will result in the demise of gender‐segregated
facilities in schools, the amici note that this has not been the
case. In fact, these administrators have found that allowing
transgender students to use facilities that align with their genNo.
16‐3522 35
der identity has actually reinforced the concept of separate facilities
for boys and girls. When considering the experience of
this group in light of the record here, which is virtually devoid
of any complaints or harm caused to the School District, its
students, or the public as a whole, it is clear that the district
court did not err in balancing the harms.

Outcome: Appellants’ motion to have this court assert pendent appellant
jurisdiction over the district court’s denial of Appellants’
Motion to Dismiss is DENIED. The district court’s order
granting the Appellee’s motion for a preliminary injunction is
AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: