Executive Summary: On May 30, 2017, on the heels of the Seventh Circuit's ground-breaking en banc decision in Hively v. Ivy Tech. College holding that sexual orientation is a protected trait under Title VII, a unanimous three-judge panel of that Circuit upheld an injunction requiring a Wisconsin school district to allow a transgender student whose sex assigned at birth was female and who now identifies as male to use the boys' restroom. In Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit ruled that under the gender non-conformity/sex stereotyping theory of liability as set out by Price Waterhouse v. Hopkins and its progeny, Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit a school from barring a transgender student from using the bathroom that corresponds to his or her gender identity.
Background: Transgender student (and employee) bathroom access has become a highly publicized legal issue. Title IX, which prohibits discrimination "because of sex" in schools receiving federal funding, does not define the term "sex," leaving speculation over whether the definition includes "gender identity." On May 13, 2016, the Obama administration issued a guidance letter ("the Guidance") to schools opining that Title IX's definition of sex includes gender identity and directing them to permit all students to use the restroom corresponding with their gender identity or risk losing federal funding. Texas v. United States ensued, in which 13 states and school districts were granted a nationwide temporary injunction by the U.S. District Court for the Northern District of Texas in August 2016, blocking enforcement of the Guidance. The Obama administration appealed to the U.S. Court of Appeals for the Fifth Circuit.
At the same time, the case of G.G. was before the Fourth Circuit. G.G. - like Ash Whitaker - is a transgender boy who was denied use of the boys' bathroom at his high school. The Fourth Circuit, relying, in part, on the Guidance, ruled in favor of G.G. in holding that Title IX prohibits gender identity discrimination. The U.S. Supreme Court granted certiorari on this issue, and oral argument was sent for March 2017.
However, just a month after President Trump took office, in February 2017, his administration withdrew the Guidance, "in order to further and more completely consider the legal issues involved." As a...