Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy's bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court affirmed a preliminary injunction granted by the District Court requiring the school to allow plaintiff access to the restroom that conforms to his gender identity. The court rested on the gender conformity argument because "[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth" and a "policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.
The court further found that the intermediate scrutiny typical of sex discrimination claims under the Fourteen Amendment applied here and that the government's expressed interest in privacy was insubstantial and unsupported by the factual evidence and thus insufficient to justify the discriminatory treatment. The court explained:
"A transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall." Id. at *39.