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Law School Case Brief

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. - 858 F.3d 1034 (7th Cir. 2017)


A moving party must demonstrate that he will likely suffer irreparable harm absent obtaining preliminary injunctive relief. This requires more than a mere possibility of harm. It does not, however, require that the harm actually occur before injunctive relief is warranted. Nor does it require that the harm be certain to occur before a court may grant relief on the merits. Rather, harm is considered irreparable if it cannot be prevented or fully rectified by the final judgment after trial. Because a district court's determination regarding irreparable harm is a factual finding, it is reviewed for clear error.


Plaintiff Ashton ("Ash") Whitaker was a 17-year-old high school senior wanted to use the boys' restroom while at school. However, defendants Kenosha Unified School District and its superintendent, Sue Savaglio, (collectively, the "District") denied the request because Ash was a transgender boy. The District did not permit Ash to enter the boys' restroom because, it believed, that his mere presence would invade the privacy rights of his male classmates. Ash, by his mother and next friend Melissa Whitaker, filed a lawsuit against the District in federal district court, alleging that the District's unwritten restroom policy violated Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment. In addition, Ash filed a motion for preliminary injunctive relief, seeking an order granting him access to the boys' restrooms. He asserted that the denial of access to the boys' restroom was causing him harm, as his attempts to avoid using the restroom exacerbated his vasovagal syncope, a condition that rendered Ash susceptible to fainting and/or seizures if dehydrated. He also contended that the denial caused him educational and emotional harm, including suicidal ideations. The District filed a motion to dismiss Ash's claims, arguing that Ash could neither state a claim under Title IX nor the Equal Protection Clause. The district court denied the motion to dismiss and granted Ash preliminary injunctive relieve. The district appealed, challenging the order granting injunctive relief and seeking review of the order denying its motion to dismiss.


Did the district court err in granting Ash's motion for preliminary injunction?




The court of appeals affirmed the district court's order. The court first rejected the District's claim that the court should exercise pendent appellate jurisdiction to review the denial of its motion to dismiss. The court ruled that the two orders were not inextricably intertwined and the court was capable of reviewing the grant of the preliminary injunction without reviewing the denial of the motion to dismiss. Turning to the preliminary injunction, the court ruled that Ash presented sufficient evidence to warrant such relief in that: (1) there was irreparable harm because use of the boys' restroom was integral to Ash's transition and emotional well-being; (2) there was no adequate remedy at law, and; (3) Ash was likely to succeed on his Title IX and Equal Protection claims. In addition, the court ruled, the balance of the hardships favored an injunction particularly because Ash had used the restroom for nearly six months without incident.

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