{"id":129,"date":"2018-01-16T15:07:53","date_gmt":"2018-01-16T21:07:53","guid":{"rendered":"https:\/\/blogofnotesite.wpengine.com\/?p=129"},"modified":"2019-07-03T23:45:19","modified_gmt":"2019-07-04T04:45:19","slug":"the-seventh-circuits-admirable-but-misguided-ruling-on-transgender-discrimination","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/the-seventh-circuits-admirable-but-misguided-ruling-on-transgender-discrimination\/","title":{"rendered":"The Seventh Circuit\u2019s Admirable but Misguided Ruling on Transgender Discrimination"},"content":{"rendered":"

The Seventh Circuit recently addressed discrimination issues involving a transgender student in a case of first impression, Whitaker v. Kenosha<\/em><\/a> (2017), holding that a transgender student was protected by Title IX\u2019s prohibition against sex-based discrimination. The court theorized that because transgender people do not conform to traditional stereotypes associated with their birth sex, transgender discrimination is nothing more than sex stereotyping, long prohibited by protections against sex discrimination. In essence, the court held that prohibiting a trans boy from using the boys\u2019 restroom was sex stereotyping, because if he was born a boy, he would have been allowed to use the boy’s room. The decision is a victory for transgender rights advocates, but does not recognize gender identity as a protected class under the Equal Protection Clause.<\/p>\n

The court could have instead found that gender identity, like sex, is a protected class deserving of heightened scrutiny.\u00a0There is no evidence that the 1972 Congress intended to protect gender identity when it passed a prohibition against sex-based discrimination, and municipalities across the country have debated adding gender identity to their anti-discrimination policies. Few non-lawyers would say that transgender people have been protected by statute since 1972. To borrow reasoning from Judge Diane Sykes’s dissent in Hively v. Ivy Tech Community College of Indiana<\/em><\/a> (7th Cir. 2017), the court could have found that\u00a0a school that refuses to allow a transgender man from using the men\u2019s room is not discriminating against him because of his birth sex, but because his gender identity does not match his birth sex. Thus, the argument continues, the discrimination is based on gender identity, and the discriminatory motivation is independent of and unrelated to the student\u2019s sex.<\/p>\n

“Legislating from the bench\u201d to achieve a desired outcome is a controversial subject, and courts can avoid debates over it by achieving the same result in a more straightforward manner.\u00a0In the Whitaker<\/em> case, the court could have concluded that the\u00a0Equal Protection Clause protects against discrimination based upon gender identity. In Windsor v. United States<\/em> (2012), the Second Circuit succinctly laid out<\/a> the Supreme Court’s test for quasi-suspect classes worthy of heightened scrutiny:\u00a0to be classified as a quasi-suspect class, 1) the group must have suffered a history of persecution, 2) its defining trait has no relation to members’ ability to contribute to society, 3) it must be a discernible group with distinguishing characteristics, and 4) it must be politically weakened. Trans people have reported high rates of discrimination in education, employment, housing, and healthcare. There is no data showing transgender people are less productive than other members of society, by virtue of their transgender status. They are easily discernible based upon the mismatch between their birth sex and their gender identity. Finally, they lack the political strength to protect themselves, as evidenced by the recent military ban, as well as their complete lack of representation in Congress and the federal judiciary.<\/p>\n

Before his retirement, Judge Richard Posner argued in his concurrence in Hively<\/em><\/a>\u00a0that the judiciary has a duty to \u201cupdate\u201d old laws and constitutional provisions so that they can reflect the needs of modern society. But the Whitaker<\/em> court need not have entered such controversial territory to protect transgender rights, when it could have instead found that trans people\u00a0have been historically denied equal protection of the laws.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit recently addressed discrimination issues involving a transgender student in a case of first impression, Whitaker v. Kenosha (2017), holding that a transgender student was protected by Title IX\u2019s prohibition against sex-based discrimination. The court theorized that because transgender people do not conform to traditional stereotypes associated with their birth sex, transgender discrimination is nothing more than sex stereotyping, long prohibited by protections against sex discrimination. In essence, the court held that prohibiting a trans boy from using…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":29,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"BLOG: The Seventh Circuit\u2019s Admirable but Misguided Ruling on Transgender Discrimination by Adam Alexander, considering Whitaker v. Kenosha (7th Cir) #appellatetwitter","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[55],"tags":[],"class_list":["post-129","post","type-post","status-publish","format-standard","hentry","category-board-member-contribution"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9jSvD-25","jetpack-related-posts":[{"id":163,"url":"https:\/\/blog.northwesternlaw.review\/court-grants-preliminary-injunction-against-president-trumps-transgender-military-ban\/","url_meta":{"origin":129,"position":0},"title":"Court Grants Preliminary Injunction Against President Trump’s Transgender Military Ban","author":"Joshua Cowin","date":"November 18, 2017","format":false,"excerpt":"On July 26, 2017, President Trump announced a directive on Twitter\u00a0that would ban transgender individuals from serving in the military. This decision reversed a policy approved under the Obama Administration that would allow transgender military personnel to openly serve. 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Ivy Tech","author":"Matthew Chang","date":"June 8, 2020","format":false,"excerpt":"In the summer of 2015, same-sex couples celebrated a civil rights victory following the Supreme Court\u2019s monumental decision in Obergefell v. Hodges. The Court recognized same-sex couples have the constitutional right to marriage, protected by the Due Process and Equal Protection Clauses. While the right to marriage was immediate, this\u2026","rel":"","context":"In "1L Blog Contest"","block_context":{"text":"1L Blog Contest","link":"https:\/\/blog.northwesternlaw.review\/category\/1l-blog-contest\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":55,"url":"https:\/\/blog.northwesternlaw.review\/panel-discussion-masterpiece-cakeshop-ltd-v-colorado-civil-rights-commission\/","url_meta":{"origin":129,"position":2},"title":"Panel Discussion: Masterpiece Cakeshop, Ltd. v. 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