The Supreme Court recently lost an opportunity to address important issues affecting transgender students. On August 25, 2017, the Kenosha Unified School District filed a petition for certiorari after the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex.
In its petition for certiorari, the school board presented the following issues: (1) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.
However, the parties have settled this matter. On January 23, 2018, the school district submitted a motion to dismiss in order to withdraw its petition for certiorari. As such, the Seventh Circuit’s holding in Whitaker v. Kenosha Unified School Dist. No. 1. Bd. of Educ., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017)—a policy requiring an individual to use the restroom that corresponds to his or her biological sex is a violation of Title IX—will stand. For more insight, please see our previous post on this case.
