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By Joe Block 

Heights approves transgender policy


September 5, 2019

The Wisconsin Heights school board unanimously approved an update to its transgender student policy at its meeting on Aug. 26.

John Klett, from Mazomanie, spoke to the board about the policy during the public comment period. “This seems rushed,” said Klett. “I can’t imagine a young girl with a young man in a shower next to her. As a privacy issue I really struggled with that.” He continued, “Why the rush when the courts haven’t decided yet?”

Board member Isaiah Crowe told Klett, “I appreciate your concern; I do appreciate your concern.” “It’s pretty clear that our administration will be far ahead of any situation. I have faith in the administration that they will do what’s right.“ He added, “We have taken time with this policy and it has not been rushed.”

District administrator Jordan Sinz spoke about the court decision guiding the policy. The initial case, known at the Whitaker case, occurred in Kenosha, and was later upheld in the 7th circuit of the Federal District Court, which applies to Wisconsin Heights. See sidebar at right. Sinz explained:

“The judge held that the school district had violated both Title IX and the Equal Protection Clause of the United State Constitution by maintaining a policy that required transgender students to use a bathroom that did not conform to the students’ gender identity.”

It should be noted that identifying as transgender, and specifically as a different gender from that which one was born with, does not require surgery or a change of birth certificate.

Sinz continued, “The [new] policy does not...state that if someone shows up tomorrow and they’re suddenly identifying as a different gender then we just say ‘because there was a Whitaker case and it was reaffirmed in Indiana you now have these rights you didn’t have yesterday.’”

Sinz quoted the policy, “If a transgender student makes any request regarding the use of segregated restrooms, the use of segregated locker rooms, or any similar type of changing area, the request shall be assessed on a case-by-case basis, taking into account all relevant interests of the student, the school district, and other students affected by the request.”

“I think that’s a key piece,” he said. “There’s an appreciation for the enormity of the situation.”

In other district news, the board tabled a request from the Gateway to the Driftless Region for a donation. The organization is seeking funds from local municipalities for a matching funds grant. A representative from the organization was supposed to provide a presentation, but he did not arrive.

In a previous meeting, board member Barb Statz said she felt the district needed to establish a policy regarding district donations. Board members decided they wanted more information, including which local municipalities contributed.

Seventh Circuit decision

The United States Court of Appeals for the Seventh Circuit sets binding precedent for lower federal courts in Wisconsin, Illinois, and Indiana. At this time, the leading seventh circuit case regarding the rights of transgender students in public schools is a 2017 decision that arose out of the Kenosha Unified School District. That case is often referred to as the Whitaker decision, in reference to the name of the plaintiff-student who was involved in the litigation. Other federal courts are now applying the Whitaker case to different facts and circumstances, and these new cases can be instructive for school officials throughout the seventh circuit--including Wisconsin.

On June 7, 2019, a federal district court in Indiana, relying in part on the Whitaker decision, concluded that a public school district had violated Title IX and the Equal Protection Clause of the U.S. Constitution in the manner in which the district addressed the use of school restroom facilities by a transgender student. Some of the relevant facts and analysis from the case include the following:

The student was assigned the gender of female at birth, but self-identified as male during childhood. The student began to present himself outwardly as a boy beginning in 8th grade and began hormone therapy during his junior year of high school.

During the student’s freshman and sophomore years of high school, school officials told him that he could not use the boys’ restrooms. Instead, he was instructed to use the girls’ restrooms or a gender-neutral, single-occupancy restroom in the nurse’s office. When changing clothes before and after physical education class, the school told the student not to use a boys’ restroom and to instead use a girls’ locker room that was not otherwise being used.

The student complied with the school district’s restroom directives to avoid being disciplined, but he found it upsetting and ostracizing. He also restricted his fluid intake to avoid needing to use a restroom during the school day.

The school district’s restroom arrangements were not made pursuant to an official policy. As a practice, if a transgender student requested accommodations beyond using a gender-neutral restroom, the district addressed such issues on a case-by-case basis. Further, a transgender student who presents an amended birth certificate would likely be permitted to use bathrooms consistent with the amended birth certificate as long as doing so does not cause a disruption.

The student sued the school district in federal court during his junior year of high school after the district refused to modify its approach to restroom access in light of the Whitaker decision. Under a preliminary injunction issued by the federal trial court, the student used the boys’ bathrooms during his senior of high school.

As mentioned above, the federal trial court recently reached the merits of the case. The judge held that the school district had violated both Title IX and the Equal Protection Clause of the United State Constitution by maintaining a policy (i.e., the district’s unwritten practice) that required transgender students to use a bathroom that did not conform to the students’ gender identity. According to the court, the result was essentially compelled by the seventh circuit’s analysis in the Whitaker decision. Regarding the Title IX claim, the Whitaker decision had (1) made it clear that sex-stereotyping claims may be brought by transgender students under Title IX; and (2) explained that providing a gender-neutral alternative is not sufficient to relieve a school district from liability,” as it is the policy itself which violates [Title IX].” As far as the student’s equal protection claim, the trial court stated that the Whitaker decision had put the Indiana school district “on notice” that its practice was a form of sex discrimination that could only survive a constitutional challenge if the school district could demonstrate a genuine and “exceedingly persuasive” justification for the practice. In particular, the school district had to show that its sex-based classification serves important governmental objectives and that the discriminatory policy is substantially related to the achievement of those objectives. The court determined that the Indiana school district had not met this burden of proof. With the question of liability settled on both claims, the judge ordered a future jury trial to determine whether the student is entitled to monetary damages.

In the broader picture, this case provides an example of how judicial authority is developing under the Whitaker decision. In this example, the trial court judge found very little space for the school district to attempt to distinguish the facts, holdings, and analysis found in Whitaker and, as a result, imposed liability on the district. The overall tone of the decision suggests that the judge saw the outcome as a straightforward application of the seventh circuit’s precedent and not as a very “close call.” School officials should continue to monitor these ongoing developments in the law and periodically review their existing policies and practices relating to transgender status. Another milestone in the development of the law in this area is expected to occur within the next year when the U.S. Supreme Court decides a pending a case that presents the question of whether Title VII (a federal employment discrimination law that prohibits discrimination based on sex) bars employment discrimination against transgender people--either based directly on their status as transgender or due to underlying sex stereotyping. Significantly, the seventh circuit’s analysis of Title IX in the Whitaker decision relied in part on the analysis of sex-based discrimination claims in several earlier Title VII cases.

Source:J.A.W. v. Evansville Vanderburgh Sch. Corp.


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