In Bathroom Case, Federal Court Unanimously Sides With Transgender Student

by | June 1, 2017

By Bruce Vielmetti

A 17-year-old transgender Kenosha high school student can continue using the boy's restroom, a federal appeals court ruled Tuesday, rejecting school district arguments against the practice.

In September, U.S. District Judge Pamela Pepper granted Ashton Whitaker, a senior at Kenosha Tremper, 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 7th Circuit U.S. Court of Appeals 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 Wisconsin, Illinois and Indiana.

"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."

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

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reliance on President Barack Obama's guidance on how school districts should interpret Title IX, a guidance later withdrawn by President Donald Trump.

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.

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.

(c)2017 Milwaukee Journal Sentinel