Jorge L. Alonso
Sally J. Scott
John A. Knight
Chicago’s federal appeals court didn’t just break new ground in employment law when it revived Kimberly Hively’s claim that she was denied promotions and ultimately lost her job because she is a lesbian, according to John A. Knight of the American Civil Liberties Union of Illinois.
The ruling by the 7th U.S. Circuit Court of Appeals, he contended, also will help clear a path to legal relief for transgender students who are the target of discrimination.
Separate federal statutes bar sex discrimination in the workplace and in schools.
But rulings interpreting Title VII of the Civil Rights Act of 1964 are used to evaluate claims brought under Title IX of the Education Amendments Act of 1972.
And in Kimberly Hively v. Ivy Tech Community College of Indiana, No. 15-1720, the 7th Circuit last month held Title VII prohibits discrimination in the workplace based on sexual orientation.
Knight contended Hively will bolster the case of the transgender students he represents in an unrelated matter.
The students at schools in Township High School District 211 in the northwest suburbs are seeking to protect a policy that allows them to use locker rooms and restrooms that align with their identities.
“Hively makes it clear that the whole range of discrimination based on sex-based characteristics is barred by Title VII,” Knight said.
“That kind of ruling would obviously impact courts interpreting Title IX as it applies to schools.”
Knight argued Hively also “gives us a pretty strong indication” that the 7th Circuit will no longer make what critics allege is an artificial distinction between certain discrimination claims.
In earlier rulings, the appeals court held Title VII does not bar discrimination based on an employee’s sexual orientation but does bar discrimination based on an employee’s failure to conform to stereotypes about how a man or a woman should behave.
Hively has changed things, Knight contended.
“It signals that discrimination against transgender students is sex discrimination,” he said, “recognizing there really is not a line between discrimination based on gender nonconformity and discrimination against a particular group, such as transgender persons.”
Sally J. Scott of Francek Radelet P.C., who represents District 211, is also pleased with the 7th Circuit’s ruling in Hively.
“I think it only strengthens our case,” she said.
But lawyers for the parties seeking to overturn the District 211 policy supported by Knight’s clients take a different position.
Both Jocelyn D. Flood of the Thomas More Society and Gary S. McCaleb of Alliance Defending Freedom in Arizona contended Hively will not affect their case.
Their clients oppose giving transgender students access to facilities that don’t align with their biological sex in order to protect classmates’ privacy, Flood and McCaleb maintained.
Hively, Flood said, addressed “whether ‘sex’ encompasses sexual orientation.”
“We see that as a different question as to whether ‘sex’ and ‘gender identity’ are interchangeable terms,” she said.
McCaleb contended those terms are not interchangeable.
Male and female, he said, “are binary and fixed categories.”
“The intermingling of the biological sexes is a privacy violation,” he said.
Flood and McCaleb represent dozens of families that filed a lawsuit in 2015 accusing District 211 of infringing on the bodily privacy of female students at William Fremd High School by forcing them to share facilities with Student A. Students and Parents for Privacy, et al. v. United States Department of Education, et al., No. 16 C 4945.
Student A is a transgender girl who uses girls’ locker rooms and restrooms at the school.
Plaintiffs in the suit include individual students as well as a group of families called Students and Parents for Privacy.
In addition to District 211, defendants in the suit include the U.S. Department of Education and the U.S. Justice Department.
Students A, B and C intervened in the suit as defendants. Students B and C are also transgender.
Another intervening defendant is the Illinois Alliance for Safe Schools, an advocacy group for youth who are lesbian, gay, bisexual or transgender, or those who are questioning their sexual or gender identities.
The plaintiffs asked for an injunction that would allow only “biological females” to enter girls’ locker rooms and restrooms in District 211 and only “biological males” to enter boys’ facilities while the suit is pending.
The plaintiffs also asked that the federal government be barred from enforcing a directive issued by the Education Department requiring public schools to let transgender students use locker rooms and restrooms that align with their gender identity.
The directive was issued in May 2015 by the Obama administration. In February, the Trump administration revoked the directive.
Four months earlier, U.S. Magistrate Judge Jeffrey T. Gilbert recommended that students in District 211’s five high schools be allowed to continue to use the facilities consistent with their gender identity while the suit challenging the policy is pending.
U.S. District Judge Jorge L. Alonso will make the final decision on the plaintiffs’ motion.
But he is waiting to decide until the 7th Circuit rules in an unrelated case that raises the same issues.
In that case, a Wisconsin school district is challenging an order that requires it to give a transgender student access to boys’ restrooms.
The student, Ashton Whitaker, is a senior at Tremper High School in Kenosha less than four miles north of the Illinois state line.
In a suit filed last year, Whitaker alleged the Kenosha Unified School District No. 1 Board of Education was violating Title IX and the equal protection clause of the 14th Amendment by refusing to let him use the boys’ restroom, making him room with girls on overnight school trips and using female pronouns when referring to him.
District 1 asserted it was following a policy of basing restroom access on the sex marker on students’ birth certificates.
U.S. District Judge Pamela Pepper of the Eastern District of Wisconsin issued a preliminary injunction requiring the district to let Whitaker use the boys’ bathroom at school while his case works its way through the courts.
The 7th Circuit heard arguments in District No. 1’s appeal on March 29.
Jurists serving on the panel included Chief Judge Diane P. Wood, who wrote the majority opinion in Hively.
Also serving on the panel were Judges Ilana Diamond Rovner and Ann Claire Williams, who joined that opinion.
Whitaker is represented by attorneys who include Joseph J. Wardenski of Relman, Dane & Colfax PLLC in Washington, D.C.
Wardenski said he is confident the 7th Circuit will hold District 1’s restroom policy constitutes discrimination in violation of Title IX and the 14th Amendment.
The 7th Circuit made it clear in Hively that Title VII and Title IX “must be read broadly to ensure that individuals can go to work and go to school free from any considerations related to sex or gender, including their sexual orientation,” Wardenski said.
He said the 7th Circuit signaled the way it was leaning during the oral arguments in Hively.
However, he said, “we were very pleased to see how strong a decision it was.”
Wardenski said the injunction has allowed Whitaker to “have a normal high school year.”
Whitaker’s situation also has been made easier by the support of his classmates, Wardenski said.
He said 70 students conducted a sit-in last year after the school principal decided Whitaker could not run for junior prom king.
The principal reversed that decision in the face of the students’ opposition, Wardenski said.
In the District 211 case, Knight said the court battle has been a “distressful experience” for the students he represents.
However, he said, it’s been a different story in school.
“Their experience has been their fellow students have been supportive of them,” he said.
“The opposition has come from the outside but not from within the school.”