Wednesday, May 31, 2017

Whitaker v. Kenosha Unified School District: Denying bathroom access based on gender identity is sex discrimination

In Whitaker v. Kenosha Unified School District No. 1 Board of Education, No. 16-3522 (May 30, 2017), the Seventh Circuit ruled that the defendant subjected Ashton Whitaker, a 17-year-old transgender boy, to sex discrimination in violation of Title IX of the Education Amendments Act of 1972 when it denied him access to the boys' bathroom. As far as I know, this is the first federal court of appeals to hold that denial of bathroom access consistent with gender identity is a form of sex discrimination, so this decision is a BIG DEAL. Although Whitaker's claim was brought under Title IX, the court's analysis relies heavily on Title VII precedent, so the same reasoning should be transferable to the employment context.

Unfortunately, as I see it, the court's reasoning reflects the same flawed interpretation of the Supreme Court's decision in Price Waterhouse v. Hopkins that has been previously advanced by LGBT advocates. I've criticized those arguments at length (including here), so I won't bother doing so again in this post. The reasoning in Whitaker is particularly problematic since in the recent decision in Hively v. Ivy Tech holding that Title VII prohibits sexual orientation discrimination, the Seventh Circuit interpreted Price Waterhouse as concluding that sex stereotyping merely involves discrimination on the basis of the "victim's biological sex (either as observed at birth or as modified, in the case of transsexuals)" -- in other words, treating a masculine biological man better than a masculine biological woman.  For Price Waterhouse to provide support for bathroom access based on gender identity rather than biological sex, it obviously must say something more than that it is unlawful to treat biological men better than biological women. 

Although I think there are potentially compelling arguments for transgender bathroom access, they're not the ones that so many others are so tickled by.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.