U.S. Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX
October 28, 2016

By Mary S. Gerbig

On October 28, 2016, the U.S. Supreme Court agreed to hear the appeal of the 4th Circuit’s decision in the G.G. v. Gloucester County School Board (discussed in our Client Alert dated August 8, 2016), which will clarify the status of the law and split in lower court decisions. The U. S. Supreme Court announcement follows current Wisconsin federal court action surrounding the Kenosha School District and transgender school issues.

A Wisconsin federal court has now issued two decisions as a result of a transgender student’s lawsuit against Kenosha Unified School District. Student Ashton Whitaker, who identifies as male, sued the District alleging that the District treated him differently from other students based on his gender identity, his status as a transgender person, and his non-conformity to male stereotypes, contrary to Title IX. Whitaker further brought a §1983 claim, alleging that this disparate treatment as compared to similarly situated students violated equal protection under the 14th Amendment to the Constitution.

United States Eastern District of Wisconsin Court Judge Pamela Pepper denied the District’s motion to dismiss the lawsuit at its infancy stages and then, days later, issued an injunction prohibiting the District from disallowing him from using the boy’s bathroom. While these two decisions are not final, they are the first indications of how a court governing our school districts in Wisconsin would interpret the application of Title IX and transgender status related to sex discrimination claims within the public school context.

The Court decision initially reviewed the definition of the term “sex” under Title IX, which prohibits discrimination “on the basis of sex” for any education program or activity receiving federal financial assistance. In interpreting the term, the Court noted that two separate dictionaries had varying definitions of the term “sex” and that the 4th Circuit Court of Appeals decision in the G.G. v. Gloucester County School Board Virginia case struggled with the same problem.

Judge Pepper noted that the 7th Circuit, which includes Wisconsin, has not ruled on the application of Title IX to transgender students. As such, she reviewed cases from the 7th Circuit and U.S. Supreme Court under Title VII (a similar discrimination law applicable to the employment law context). However, the Title VII cases provide contradictory interpretations of whether the term “sex” includes transgender persons. Judge Pepper also made note of the conflicting decisions out of Texas (discussed here) and the 4th Circuit G.G. case regarding whether sex discrimination includes transgender persons, but indicated that she only needed to decide whether the student’s claims are plausible at this stage of the litigation.

Judge Pepper then discussed the deference required with regard to the Department of Education’s Dear Colleague Letter issued on May 13, 2016, which has been a focus of the recent legal disputes. Judge Pepper ruled that the term “sex” was ambiguous, consistent with the 4th Circuit’s reasoning in the G.G. case, and, therefore, the Dear Colleague Letter was entitled to deference because it was not inconsistent with the law and regulations under Title IX.

Another aspect of Judge Pepper’s decision was her conclusion that the student alleged enough facts to sustain a sex stereotype, also known as a gender non-conformity claim. The Court determined that the District treated the student differently because:

  1. he did not conform to gender stereotypes associated with being a biological female when the District suggested that he use bathrooms other students were not required to,
  2. subjected him to surveillance of his bathroom use, and
  3. initially refused to allow him to stand for prom king.

A sex stereotype claim is a separate and distinct type of claim from a claim of sexual orientation as “sex” discrimination. This type of claim frequently leads to inconsistent legal decisions because courts throughout the country struggle with the distinction and the unique case by case analysis.

The Kenosha Unified School District’s motion to dismiss was denied by Judge Pepper. The student’s equal protection claim may proceed forward now because he alleged enough facts to demonstrate to the Court that he was discriminated against relative to other males by not being allowed to use facilities that other males use. Judge Pepper issued an injunction a few days later, after another hearing, prohibiting the District from barring the student from using the men’s bathroom.

The Kenosha Unified School District has appealed the decision, and now the U.S. Supreme Court has waded into this issue. In the meantime, districts should tread carefully if presented with any matters concerning the implementation of Title IX and consult legal counsel to assist in light of the decisions involving a Wisconsin school district and the U.S. Supreme Court's involvement. Please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig, at 920.431.2242 / mgerbig@dkattorneys.com with any questions. We will continue to monitor and provide updates.

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