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Appeals court: Constitution protects transgender rights

May 31, 2017 by Lyle Denniston


A federal appeals court, in a breakthrough ruling on transgender rights, has ruled that the Constitution’s ban on unequal treatment of the sexes provides significant  protection against discrimination based on gender identity. 

If a program or policy by a public agency, like a school, denies equality based on a stereotyped image of how a transgender person should act, that may amount to unconstitutional bias, according to the ruling on Tuesday by the U.S. Court of Appeals for the Seventh Circuit. 

This appeared to mark the first time that a court at that level had extended the sex equality guarantee that courts have found in the Constitution’s Fifth and Fourteenth Amendments to a transgender person – in this case, a Kenosha, Wis., high school senior who was born a female but now identifies as a male.

The ruling gave the youth, Ashton Whitaker, a right at least temporarily to use the boy’s restroom when he is at school for classes (he will graduate shortly) or for school events.  He and his mother sued when he was denied that access, and told he could only use the girls’ restroom.

The Circuit Court, in another part of its decision that appeared to be a first, declared that the youth is also protected by a federal civil rights law from bias based upon sex stereotyping.  That law is Title IX, which applies to schools and colleges that receive federal funds.   (The Constitution only applies to government, but Title IX reaches all educational facilities with federally financed programs.)

Both the constitutional and federal law interpretations in the case of Whitaker v. Kenosha District 1 Board of Education stopped short of declaring that gender identity itself is entitled to full equality – in the way that sex or race are.  Under Supreme Court precedents, sex and race are considered to be entitled to legal equality because those are human characteristics that are in-born, and have historically been targeted by discrimination.

The Circuit Court does not put gender identity into that category.  But it did declare that, when gender identity has developed into a medical condition for a specific individual in a way that seriously affects the way that person lives their life, it is likely to be decided that that person cannot be treated less favorably just because they are seen as failing to conform to the characteristics of the gender – male or female – assigned to them at birth.  That is a kind of stereotyping that studies have shown is often encountered by transgender people.

The concept of sex or gender stereotyping – or, as it is sometimes called, sex or gender non-conformity – has been developing in the courts as a basis for a right of gays and lesbians to equal legal treatment under federal civil rights law.  The Seventh Circuit Court, for example, just recently used that approach in finding protection in the workplace under a federal law, Title VII, for a male or female who is perceived as not acting as a male or female would.   (Title VII outlaws discrimination in employment “based on sex,” and does not explicitly protect sexual orientation.)

In recent years, there has been a rapid spread of legal protection for gays and lesbians following a decades-long campaign by advocacy organizations.   Only recently has a similar campaign for transgender people begun to make some gains in the courts.

One of the highest profile transgender rights cases, involving a transgender youth in Virginia, Gavin Grimm, is still developing in the U.S. Court of Appeals for the Fourth Circuit.   The case was returned to that court, which had previously ruled in favor of the youth’s right to use the boys’ restroom at school, by the Supreme Court after the Trump Administration abandoned a policy view in favor of Gavin’s claim of discrimination under Title IX.

In the near future, one of the developing cases on transgender rights is expected to reach the Supreme Court for a new test of how civil rights law may apply.

The Seventh Circuit Court’s Tuesday ruling in the case of Ashton Whitaker came at an early stage of that case, on a plea by the youth and his mother for a temporary court order (technically, a preliminary injunction) to allow him to use the boys’ restroom at school.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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