The U.S. Court of Appeals for the Seventh Circuit has affirmed a Wisconsin district court’s preliminary ruling that allows Ashton Whitaker, a 17-year-old transgender boy, to use the men’s bathrooms at his high school in Kenosha, Wisconsin.
Last year Whitaker’s family sued the Kenosha Unified School District after it forbade him from using the men’s bathrooms at George Nelson Temper High School because his birth certificate identified him as a female.
In its ruling, the Chicago district court, having a unanimous three-judge panel, stated that Whitaker would most likely face “irreparable harm” if he was forbidden from using the men’s bathrooms.
The court also ruled that Whitaker would most likely win his claim that the Title IX of the Education Amendments of 1972, an anti-discrimination law, protects transgender students. The claim is currently making its way through the lower court.
“The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non-transgender students, in violation of Title IX,” wrote Judge Ann Claire Williams in the 35-page opinion.
By forcing Whitaker to use a bathroom that does not conform to his gender identity, the school district is punishing him for his gender non-conformance, which goes against Title IX anti-discrimination laws, said the court.
The three judges ultimately did not agree with Whitaker’s school district’s argument, which claimed that allowing Whitaker to use the men’s bathrooms might infringe upon the privacy rights of other students. The panel did not believe that the school district provided any evidence of how Whitaker would negatively affect his fellow students.
“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,” said Williams.
“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,” continued the judge.
Before his lawsuit, the school district told Whitaker, a senior, that he would have to use the women’s bathrooms or a “gender-neutral” bathroom in the school’s main office. Whitaker was the only student permitted to use the office bathroom.
“This action further stigmatized Ash, indicating that he was ‘different’ because he was a transgender boy” and only “exacerbated the harm,” wrote Williams.
According to Whitaker, him having to use the women’s or gender-neutral bathroom also brought him a great amount of unwanted attention. To keep himself from going to the bathroom regularly, he resorted to drinking less water. He became dehydrated on several occasions, causing him to faint. Whitaker also thought about committing suicide, he told the court.
“It’s nice knowing this will definitely be a beacon for other trans kids and other members of the community to look to as a source for hope,” Whitaker said in a conference call with reporters.
Whitaker’s lawyers have applauded the court’s decision, as it is the first time a federal appeals court has ruled that transgender students are protected under laws that prohibit discrimination in education.
Whitaker’s case is one of many legal battles transgender people and their supporters are fighting in the United States, specifically over the use of bathrooms in schools and public buildings. With these battles, the right for transgender people to use the bathroom of their gender identity has become a majorly divisive issue in politics and government.
In February the Trump administration rescinded public schools’ Title IX obligations to transgender students, which had been enforced under President Obama, while in March the Supreme Court took back a lower court’s ruling allowing Gavin Grimm, a transgender boy in Virginia, to use the bathroom of his choosing.
The Trump administration’s reasoning for withdrawing the Obama administration’s guidance was that it failed to “explain how the position is consistent with the express language of Title IX.” However, the administration has yet to make its own case for whether Title IX applies to transgender people’s right to use the bathroom of their gender identity.
