## Facts

- Ashton “Ash” Whitaker, a transgender boy, attended Tremper High School in the Kenosha Unified School District.
- After coming out in 2014, school administrators barred him from using the boys’ restrooms and directed him to use either the girls’ restrooms or a distant single-user restroom.
- Staff monitored his restroom use, pulled him from class, and threatened discipline for using the boys’ restrooms.
- Ash alleged additional disparate treatment, including inconsistent use of his name and pronouns and restrictions during school activities and overnight trips.
- Ash had vasovagal syncope and alleged that avoiding restrooms to comply with the policy increased health risks from dehydration.
- He also alleged serious educational and emotional harm, including suicidal ideation.
- Ash sued under Title IX and the Equal Protection Clause and moved for a preliminary injunction to allow him to use the boys’ restrooms during his senior year.
- The district court denied the school district’s motion to dismiss and granted the preliminary injunction barring enforcement of the restroom restrictions and related monitoring/discipline.

## Issues

1. Whether the court of appeals could exercise pendent appellate jurisdiction to review the denial of the motion to dismiss in an appeal from a preliminary injunction.
2. Whether Ash showed a likelihood of success on the merits under Title IX based on the school’s denial of boys’ restroom access.
3. Whether Ash showed a likelihood of success on the merits under the Equal Protection Clause, including whether heightened scrutiny applied and whether privacy concerns justified the policy.
4. Whether the district court abused its discretion in finding irreparable harm, that the balance of harms favored Ash, and that the injunction served the public interest.

## Decision

- The Seventh Circuit declined to exercise pendent appellate jurisdiction over the denial of the motion to dismiss because it was not inextricably intertwined with review of the preliminary injunction.
- The court affirmed the preliminary injunction.
- The court held Ash showed a likelihood of success under Title IX because the restroom policy treated him differently on the basis of sex, including under a sex-stereotyping theory.
- The court held Ash showed a likelihood of success under Equal Protection because the policy was a sex-based classification subject to heightened scrutiny and the district failed to provide an exceedingly persuasive justification.
- The court agreed that Ash demonstrated irreparable harm, and that the district’s asserted harms and privacy concerns were speculative on the record.

## Legal Principles

- Pendent appellate jurisdiction is limited and generally unavailable unless nonappealable issues are inextricably intertwined with, or necessary to review, an appealable order.
- Discrimination against a transgender student regarding restroom access can constitute discrimination “on the basis of sex” under Title IX, including when grounded in sex stereotypes and gender nonconformity.
- A policy that assigns restroom access based on birth-assigned sex is a sex-based classification for Equal Protection purposes and triggers heightened scrutiny.
- Under heightened scrutiny, the government must show important objectives and a substantial relationship between the classification and those objectives, supported by an exceedingly persuasive justification; speculative privacy assertions are insufficient.
- In preliminary-injunction analysis, documented physical and psychological harm to a student can outweigh speculative institutional harm, and enforcing anti-discrimination protections can satisfy the public-interest factor.

## Conclusion

The Seventh Circuit affirmed a preliminary injunction requiring the school district to allow a transgender boy to use the boys’ restrooms, holding he was likely to succeed under Title IX and Equal Protection and that the district’s privacy rationale lacked evidentiary support compared to the concrete harms he showed.


Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017)