Transgender student at Wisconsin high school wins appeal

Melissa and Ashton Whitaker. Courtesy Transgender Law Center

Melissa and Ashton Whitaker. Courtesy Transgender Law Center

The Transgender Law Center, which represented Whitaker, released a statement from the student who said: 'After facing daily humiliation at school a year ago 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.

"After facing daily humiliation at school a year ago, 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 added.

The ruling comes as a state Republican lawmaker says he plans to reintroduce a bill that would require K-12 public school students to use a bathroom or changing room that corresponds to their biological gender. But the Kenosha Unified School District fought the ruling, appealing the judge's decision.

With Whitaker, however, a decision from the Supreme Court could decide the future of transgender student's rights for some time.

"After facing daily humiliation at school a year ago 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", Ash said.

With his mother's support, Whitaker had sued his school district, the Kenosha Unified School District, after he was barred from using the facilities other boys used and was relegated instead to the girls' restroom or a gender-neutral bathroom in the main office.

The court dismissed as "sheer conjecture and abstraction" the school district's argument that its refusal to let him use the boys' bathroom was based on a need to protect student privacy. "For almost six months, Ash used the boys' bathroom while at school and school-sponsored events without incident or complaint from another student". He resorted to drinking less water, which caused him to faint when dehydrated, according to court filings.

Stadler said the district is considering whether to appeal to the Supreme Court or ask a full panel of 7th Circuit judges to hear the case - or whether to proceed with the case in district court.

"The School District argues that even under a sex‐stereotyping theory, Ash can not demonstrate a likelihood of success on his Title IX claim because its policy is not based on whether the student behaves, walks, talks, or dresses in a manner that is inconsistent with any preconceived notions of sex stereotypes", Williams writes.

'I hope my case will help other transgender students in Kenosha and elsewhere to just be treated the same as everyone else without facing discrimination and harassment from school administrators'.

Whitaker argued that the school district's bathroom policy violated his rights under the 14th Amendment of the U.S. Constitution and under Title IX, which prohibits sex discrimination in federally funded schools. To avoid punishment, Ash tried to avoid using the bathroom at school altogether. "It was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the school district's eyes". Also cited is the 7th Circuit's recent in decision in Hively v. Ivy Tech Community College, which determined anti-gay bias is sex discrimination under the law.

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.

The court's reasoning built on a long line of authority holding that sex-stereotyping-that is, treating someone differently due to their perceived failure to conform to dominate notions of what it means to be sufficiently male or female-is a form of impermissible sex discrimination.

The 7th Circuit embraced that approach in Tuesday's ruling, suggesting that because "a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was assigned at birth", it's unlawful to stigmatize a student based those stereotypes. "This win makes that more possible for more people".

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