Wisconsin transgender student wins appeal to use boys’ bathroom

Wisconsin transgender student wins appeal to use boys' bathroom
Unisex signs hang outside bathrooms at Toast Paninoteca on May 10, 2016, in Durham, N.C. On Tuesday, May 30, 2017, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of a transgender student who challenged a Wisconsin school district's policy limiting his bathroom usage.

MILWAUKEE — A federal appeals court ruled Tuesday in favor of a transgender student who challenged a Wisconsin school district’s policy limiting his bathroom usage.

In September, U.S. District Judge Pamela Pepper granted Ashton Whitaker, 17, a senior at Kenosha Tremper in Kenosha, Wis., Permission to use the boys’ bathroom. Kenosha Unified School District appealed the ruling, arguing that the harm to other students, particularly boys using the bathroom, outweighs any harm to Whitaker.

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit disagreed with the district. Judge Ann Claire Williams wrote, “The harms identified by the school district are all speculative and based upon conjecture, whereas the harms to Ash are well‐documented and supported by the record. As a consequence, we affirm the grant of preliminary injunctive relief.”.

The 7th Circuit covers Illinois, Indiana and Wisconsin.

“I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” Whitaker said in a statement released by the Transgender Law Center, which helped bring his case.

“After facing daily humiliation at school last year from being threatened with discipline and being constantly monitored by school staff just to use the bathroom, the district court’s injunction in September allowed me to be a typical senior in high school and to focus on my classes, after-school activities, applying to college, and building lasting friendships,” Whitaker said.

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A lawyer for the school district didn’t immediately return a message for comment from The Associated Press.

The appeals court upheld the lower court’s ruling on constitutional grounds, finding that Whitaker would succeed on his claim under Title IX of the Education Amendments of 1972 because the school district’s policy violated the Equal Protection clause of the 14th Amendment.

“That finding has incredibly huge implications, in both the Seventh Circuit and nationally,” said Anthony Michael Kreis, a professor at Chicago-Kent College of Law.

Whitaker’s attorneys called the decision a legal landmark, as it is the “first federal appeals court to find conclusively that a transgender student has the right to be treated in accordance with the student’s gender identity at school under both Title IX and the Constitution.”.

The court ruled without reliance on former president Barack Obama’s guidance on how school districts should interpret Title IX, a guidance later withdrawn by President Trump.

“Indiana schools, and any school in the Seventh Circuit is on notice that the Seventh Circuit is not going to treat their case favorably,” Kreis said. “The writing is on the wall that transgender discrimination is not palatable if the school district wants to defend these policies.”.

In eighth grade, Whitaker told his parents he was transgender and began openly identifying as a boy when he started as a freshman at Tremper High. Last year, he began hormone replacement therapy and legally changed his name to Ashton.

While his school peers largely accepted him as a boy, and he used the boys’ restroom for almost six months without incident, district administrators at one point insisted he use only girls’ restrooms or a gender-neutral bathroom in the school’s main office. Instead of doing that, or risking discipline for using the boys’ rooms, Whitaker began severely limiting his fluid intake, which led to fainting and dizziness.

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The school stood its ground and said Whitaker would need to complete physical gender transition before being allowed to use the boys’ restrooms. Whitaker and his mother then sued.

The Seventh Circuit has heard several cases involving gender and sexual orientation discrimination.

Most recently, the court examined whether Indiana discriminates by not recognizing two married women both as parents on their children’s birth certificates.

In April, the Seventh Circuit ruled 8-3 that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964.

The ruling came as the result of a lawsuit filed in August 2014 by South Bend, Ind., Resident Kimberly Hively, a former part-time instructor at Ivy Tech Community College who said the college did not hire her full-time because she was a lesbian. Ivy Tech denied her claim.

Regarding Tuesday’s ruling, Kit Malone, a transgender advocate at the ACLU of Indiana said the ruling is a win for transgender students and the community as a whole. She acknowledges, however, that the ruling is not set in stone.

“It’s a preliminary injunction that right now impacts that one school in Wisconsin and is not final, but it gives us hope that Ash was likely to succeed on his Title IX claim.”.

Vielmetti reports for the Milwaukee Journal Sentinel; Hussein for The Indianapolis Star. Follow Bruce Vielmetti and Fatima Hussein on Twitter: @ProofHearsay and @fatimathefatima.