The case of the week asks the question why a person with gender dysphoria, would bother going with the ADA if he or she could go with title IX of the Civil Rights Act or the equal protection clause of the 14th amendment instead. Recently, the Seventh Circuit Court of Appeals held here that sexual orientation discrimination was sex discrimination. If sexual orientation discrimination is sex discrimination, then it would certainly seem to me that discrimination based on gender dysphoria would also be sex discrimination. The Seventh Circuit in Whitaker v. Kenosha Unified School District No. 1 Board of Education said that is indeed the case. With respect to sexual orientation and gender dysphoria cases, I have always wondered why a plaintiff would seek protection under the ADA. In other words, disability has plenty of stigma associated with it, why would a person with gender dysphoria choose to be labeled as a person with a disability when that person would be facing plenty of stigmas as it is? Their is also the fact that the ADA by statute, 42 U.S.C. 12211,  excludes gender dysphoria from coverage unless it results from a physical impairment. Perhaps, it is because until recently adverse action based upon sexual orientation or gender dysphoria was not considered to be sex discrimination, and the ADA has a reasonable accommodation requirement unless it is a regarded as case. So, while this case is not an ADA case per se, it is related to the ADA because it offers an alternative approach to using the ADA with respect to a person who has gender dysphoria. As is usual, the case is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff in eighth grade came out to his parents as transgender and a boy. When he entered high school as a freshman, he began to openly identify as a boy, cut his hair, wear more masculine clothing, and began to use the name Ashton and male pronouns. In the fall of his sophomore year, he told his teachers and classmates that he is a boy and asked them to refer to him that way and to use male pronouns. While publicly transitioning, he began to see a therapist who diagnosed him with gender dysphoria and subsequently began hormone replacement therapy. He also changed his name to Ashton Walker legally. In the spring of his sophomore year, plaintiff and his mother met with a guidance counselor on several occasions requesting that he be permitted to use the boys restroom at school and at school sponsored events. Plaintiff was later notified that the administration decided he could only use the girls restroom or a gender-neutral restroom in the school’s main office. The gender-neutral restroom was quite a distance from his classrooms. Since plaintiff was the only student permitted to use the gender-neutral bathroom in the school’s office, he feared using it would draw further attention to his transition and status as a transgender student. He also feared he might be disciplined if he tried to use the boys bathroom and that such discipline would hurt his chances of getting into college. For those reasons, he restricted his water intake and attempted to avoid using any restroom at school for the rest of the school year. However, doing that exacerbated his vasovagal syncope (to avoid triggering the condition, plaintiff’s physician advised him to drink 6 to 7 bottles of water and a bottle of Gatorade daily), which meant that he suffered from fainting and dizziness, stress-related migraines, depression, and anxiety. He even began to contemplate suicide.

In his junior year, for the first six months, he used the boys restroom at school without incident. However in February 2016, a teacher caught him washing his hands at the sink in the boys restroom and reported that to the school’s administration. That led to the guidance counselor reiterating the school’s stance that he could only use the girls restrooms or the gender-neutral bathroom in the school’s main office. A meeting with the assistant principal resulted in the same decision with the assistant principal saying that she would need unspecified legal or medical documentation in order to change the decision. When the plaintiff submitted the letters, which identified him as a transgender boy and recommended he be allowed to use male designated facilities, those letters were deemed not to be sufficient. Rather, the school insisted that the plaintiff would have to have a complete surgical transition, which is prohibited for someone under 18 years of age, in order to be permitted to access the boys restroom. Despite all this, plaintiff continued to use the boys restroom for the remainder of his junior year, but due to the stress of doing that, he experienced feelings of anxiousness and depression and once more began to contemplate suicide. The school then instructed its security guard to monitor his bathroom use to ensure that he used the proper facilities. He was also removed from class on several occasions to discuss is violations of the school’s policies. His classmates and teachers often asked him about these meetings and why administrators were removing him from class. In April 2016, the school doubled down by giving him the option of using two single-user gender-neutral bathrooms on the opposite side of the campus from where the classes were held and providing only one student, the plaintiff, with the key. Since the restrooms were on the other side of the campus and using them caused him to miss class time and further stigmatize him, he once again avoided using the bathroom at school, which only aggravated his pre-existing conditions. As if this wasn’t enough, plaintiff also alleged that the school district initially prohibited him from running for prom King, referred to him with female pronouns, and required him to room with female students or alone on school sponsored trips.

In July of 2016, he filed a complaint alleging violations of title IX and the equal protection clause of the 14th amendment. He prevailed in District Court and the school district appealed.

II

Court’s Reasoning

  1. Not all transgender persons opt to complete a surgical transition since such a procedure entails significant risks and costs.
  2. School district never gave an explanation as to why a surgical transition was necessary.
  3. Verbal statements about the surgical transition policy were never reduced to writing.
  4. School district never provided any written documentation detailing when the policy went into effect, what that policy was, or how one could change his status under that policy.
  5. To succeed on a preliminary injunction a person seeking that injunction has to show: 1) he will suffer irreparable harm absent preliminary injunctive relief during the pendency of the action; 2) inadequate remedies at law exists; and 3) he has a reasonable likelihood of success on the merits. If all that can be shown, then the court engages in a balancing analysis in order to determine whether the balance of harms favors the moving party or the party arguing against the injunction.
  6. Plaintiff presented expert opinion supporting his assertion that he would suffer irreparable harm absent preliminary relief. The expert testified that the use of the boys restrooms was an integral part to plaintiff’s transition and emotional well-being. Experts also testified that his suicidal thoughts and depression worsen each time he had to meet with school officials regarding his bathroom usage and that the school district’s actions were directly causing significant psychological distress and placing the plaintiff at risk for lifelong diminished well-being and life functioning.
  7. The school district exacerbated the harm by dismissing him to a separate bathroom where he was the only student who had access thereby further stigmatizing him. These bathrooms gave him the unenviable choice of using a bathroom that would further stigmatize him and cause him to miss class time or to avoid using the bathroom altogether at the expense of his health.
  8. The school district’s bathroom policy actually invited more scrutiny and attention from his peers.
  9. Plaintiff did not delay seeking injunctive relief. The minute he was unable to use the boys bathroom, which he did for months without incident, he filed an administrative complaint, which he withdrew over the summer before his senior year so that he could pursue injunctive relief in time for his senior year.
  10. The harm alleged by the plaintiff, possible suicide, is prospective in nature and cannot be compensated by money damages. For that matter, there is an inadequate legal remedy for the preventable lifelong diminished well-being and life functioning.
  11. When it comes to preliminary injunctive relief, likelihood of success only mean that a plaintiff has to show that his chances to succeed on the claims are better than negligible, a low threshold.
  12. Neither the Title IX statute nor its regulations define the term, “sex.” For that matter, neither defines the term, “biological.”.
  13. Sex stereotyping is sex discrimination. See also this blog entry. Further, by definition, a transgender individual does not conform to the sex based stereotypes of the sex that he or she was assigned at birth. Accordingly, a policy requiring an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender nonconformance in violation of title IX.
  14. The school district’s policy also subjects the plaintiff to different rules, sanctions, and treatment than non-transgender students, which is also in violation of title IX.
  15. Providing a gender-neutral alternative does not relieve the school district from liability as it is the policy itself that violates title IX.
  16. The school district continued to treat the plaintiff differently when it provided him with access to the gender-neutral bathrooms because the plaintiff was the only student given such access.
  17. Plaintiff’s condition was not a unilateral declaration but rather something that was medically diagnosed and documented.
  18. Since gender dysphoria involves people acting upon a stereotype, which is sex discrimination, the equal protection class that such an individual falls into is the sex based class. Sex-based discrimination is subject to heightened scrutiny as sex frequently bears no relation to the ability to perform or contribute to society. Therefore, the burden is on the state to demonstrate that its justification for the policy is exceedingly persuasive. That means showing how the classification serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. Finally, that justification cannot be based upon overbroad generalizations about sex.
  19. School district’s policy cannot be stated without referencing sex and is inherently based upon a sex classification subject to heightened review under the equal protection clause.
  20. The argument that the policy is required to protect the privacy rights of each and every student doesn’t wash because the plaintiff used the boys bathroom while at school and for school sponsored events without incident or complaint from another student for nearly 6 months. Further, neither party offered any evidence that the school district received any complaints from other students. Accordingly, the school district’s policy doesn’t do anything to protect the privacy rights of individual students with respect to other students and it ignores how the plaintiff uses the bathroom, which it by entering the stall and closing the door.
  21. A transgender student’s presence in the restroom is no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex deciding to sneak glances at his or her classmates while using the bathroom.
  22. Common sense said 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 utilize the stall.
  23. It isn’t clear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex because that marker does not take into account an individual’s chromosomal makeup.
  24. Other states do not require an individual to have a surgical reassignment before being able to change their birth certificate. Accordingly, under the full faith and credit clause, Kenosha would have to grant a transgender student who has changed his birth certificate in another state the right to use the restroom of his or her identity regardless of the anatomy he or she retains.
  25. The school district doesn’t even require that each new student provide a birth certificate as a passport is also an acceptable alternative.
  26. School district has not demonstrated that it suffers any harm from having to comply with the preliminary injunction order nor did it establish that the public as a whole suffers any harm from such compliance.
  27. Administrators from 21 states and the District of Columbia filed an amicus brief where they explained that they have experience implementing inclusive bathroom policies in their respective schools and in dealing with the same privacy concerns when it comes to transgender students. The administrators uniformly agreed that the frequently raised hypothetical concerns about a transgender student utilizing a bathroom consistent with his or her gender identity have simply not materialized. To the contrary, their experience is that all student needs are best served when students are treated equally. Finally, the same administrators found from their experience that allowing transgender students to use facilities aligning with their gender identity actually reinforces the concept of separate facility for boys and girls.

III

Takeaways

  1. Over the years, I have read many a case talking about preliminary injunctions. This is the first one I can recall saying that the standard for showing a likelihood of success on the merits is one of simply better than negligible. So, when it comes to preliminary injunctions, you might want to check how your own Circuit handles “likelihood of success.”
  2. This case finds title IX protection and equal protection clause protection based upon gender dysphoria being sexual stereotyping. As the court notes, if adverse action is taken against a person with gender dysphoria, it is by definition sex stereotyping. That means taking adverse action against a person with gender dysphoria automatically activates title IX (title IX only applies to educational institution), and, by this court anyway, activates heightened equal protection analysis. I also see no reason why the title IX analysis could not apply to title VII as well.
  3. As a matter of preventive law, where a school has a transgender student, the school is going to be much better off treating that student in a humane way and treating that student according to their identity rather than fighting it the way the defendant did here. One wonders about the humanity and legal expense associated with the the school district’s approach.
  4. After this case, I am struggling to understand why a person with gender dysphoria would bother with the ADA at all. After all, who wants to say that they have a disability if it isn’t necessary to do so?
  5. The Seventh Circuit has now gone on record that sexual orientation discrimination is sex discrimination and gender dysphoria discrimination, which any adverse action would necessarily be based upon stereotyping, is also sex discrimination. I do think that both of these decisions will prove very influential across the country. Of course, it will ultimately be up to the Supreme Court to decide. The Supreme Court decision may very well depend upon whether Justice Kennedy is still on the court at the time the case reaches the Supreme Court.
  6. In some ways, gender dysphoria is an easier case with respect to title IX and the equal protection clause than being lesbian or gay is. That is because adverse action in the gender dysphoria situation is automatically sexual stereotyping, which the United States Supreme Court has said for years is sex discrimination.
  7. Have written policies to deal with these situations.

4 Responses to Why Argue ADA at all in Gender Dysphoria Cases, When Title IX and the Equal Protection Clause are Available?

I think you should learn more about trans-people in the real world before you write columns like this — it reeks of the ivory tower. As I have told more than one person our job is to zealously represent our clients. We have sued PA and NJ under, inter alia, the ADA — the PA case we settled successfully resulting in widespread changes for trans people’s birth certificates. And if you think being disabled is stigmatizing try being trans.

It’s odd how the only people I am aware of who have ever challenged this aren’t trans people. And the ones supporting it are trans people, our LGB friends, and the disabled. For example, we had 12 trans, LGBT and disabled national groups amici join a brief written by Prof. Kevin Barry for our still pending NJ case.

Finally as a former white male, law professor and partner at the biggest firm in the world, I can well assure you that you have no idea of trans life and the violent hatred experienced by trans people. For more on the issue generally I suggest you watch

http://www.lawjournaltv.com/people-speak/blog/2017/05/lgbt-bar-criticizes-alj-we-respond/

where I go against a lawyer for a “Christian” group heavily involved in anti trans litigation, as well as review the brief in our NJ case – Doe v. Arrisi, et. a;.

I appreciate the comment and salute you on your professional accomplishments. I take it as a compliment that the blog sounds like the ivory tower, having been in higher education full time for twelve years. I intentionally try to bring an academic perspective to the blog while simultaneously demystifying the ADA. I absolutely do know, as a person with a disability (disabled is not a term generally favored by the disability community), that disability is stigmatizing. My point was not to compare the stigmas of the two (I won’t even compare disabilities to each other; a major trap the disability community falls into oftentimes), but was only saying that since trans is such a stigma, a question exists as to why another stigma would want to be layered on top of it. This is especially so since the trend looks to be that sexual orientation and gender dysphoria could well be protected under the Civil Rights Act. I completely agree that there may be strategic reasons why a litigator would want to pursue the ADA instead of or in addition to the Civil Rights Act, and if that is the case, then by all means a litigator should represent their clients accordingly.

Again, thanks for the comments and for reading the blog.

As I may have mentioned here before, my daughter is getting bat mitzvahed in a few weeks. The synagogue that we belong to was founded over 20 years ago as the home for gay and lesbian Jews in the area we live. It has since become a home for Jews of all sexual orientation. A mandatory prayer that is said at all of our services is a prayer for hiding, which basically says that LGBTQ suffered mightily by being in the closet and that being in the closet is not healthy. In my years in the disability community, I have seen the same effect on persons with disabilities. When I asked the rabbi if I could amend the prayer to include persons with disabilities, that led to a far-reaching discussion about the nature of the various communities within LGBTQ, possible affinity with the disability community, and how the T is perceived by LGBQ. As a result of that conversation, I realized that it is entirely possible that the T might have more identity with the community of people with disabilities than they might with the LGBQ. So, as a result of this conversation, it is more understandable to me why a transgender person might feel quite comfortable arguing that they are a person with a disability even if it is layering on another stigma-disability-on top of the trans stigma. None of this changes my legal analysis, but it does give me a different perspective.

Thank you for being open minded. I find that at least half my job is education. Which is fine, because we are an exotic group, as I prefer to think of it. I would love to discuss these issues further with you once we get an opinion.

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