Transgender student at Wisconsin high school wins appeal

Cheryl Sanders
May 31, 2017

"I've basically stopped using the bathroom at school altogether, which makes it painful and hard to get through the school day", Whitaker (photo above, with his mother) said last summer when he first sued his school district.

In September, U.S. District Judge Pamela Pepper granted 17-year-old high school senior Ashton Whitaker permission to use the boys' bathroom at Kenosha's Tremper High School. "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", Judge Williams wrote.

A transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.

In another legal decision affirming federal law ensures bathroom access for transgender students, a federal appeals court has determined a transgender student in Wisconsin must be allowed access to restrooms at his high school consistent with his gender identity. But the Kenosha Unified School District fought the ruling, appealing the judge's decision.

According to the court decision, Ash's school informed him after he transitioned he couldn't use the boys' restroom, only the girl's restroom or a gender-neutral facility some distance from his classes. The court further described the school district's actions as "arbitrary" and in violation of Ash's Constitutional rights.

In that case, the lower court was relying on an Obama administration "guidance" document interpreting Title IX sex-discrimination protections, which the Trump administration subsequently rescinded.

"A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender nonconformance, which in turn violates Title IX", Williams said. "For almost six months, Ash used the boys' bathroom while at school and school-sponsored events without incident or complaint from another student".

The court found that the school district presented no evidence that Ash's restroom use affected any other students. And if bans against sex discrimination in particular apply to trans people, then it's not just students' rights that are protected, but all trans people who face discrimination in other settings where sex discrimination is banned - so not just schools, but the workplace and housing as well. The 7th Circuit agreed with both claims and upheld an injunction that directed the school to accommodate the student.

Whitaker claimed that the school violated Title IX regulations against gender discrimination, as well as the Equal Protection Clause of the Fourteenth Amendment.

Ash is represented by Transgender Law Center, the largest national transgender advocacy organization; Relman, Dane & Colfax PLLC, a Washington, D.C. -based civil rights law firm; and Robert ( Rock ) Theine Pledl of McNally Peterson, S.C., based in Milwaukee, Wisconsin.

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