Metro Weekly

7th Circuit rules in favor of allowing transgender student to use boys’ restroom

Decision marks first time an appeals court has found trans students are protected by Title IX without relying on federal guidance

Ash Whitaker (right) and his mother, Melissa – Photo: Transgender Law Center

A federal appeals court has upheld a lower court’s decision allowing a transgender boy in Wisconsin to continue using the boys’ restroom.

A three-judge panel of the 7th U.S. Circuit Court of Appeals has unanimously ruled that Ashton Whitaker, a senior at Kenosha’s Tremper High School, should be allowed to continue using facilities that match his gender identity, reports the Milwaukee Journal-Sentinel. The school had previously argued that Whitaker should not be permitted to use the boys’ restroom until he had completed a full physical gender transition.

In September, U.S. District Judge Pamela Pepper issued an injunction that allowed Whitaker to use the boys’ restroom and prevented school administrators from taking retaliatory action against him. Kenosha Unified School District No. 1 subsequently appealed the ruling, arguing that the harm Whitaker’s choice of bathroom poses to other male students should outweigh any injury to Whitaker.

But the panel rejected the school district’s argument, with Judge Ann Claire Williams writing: “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.”

Whitaker’s attorneys called the decision “groundbreaking,” marking the first time that a federal appeals court has found that transgender students have the right to be treated according to their gender identity, under both Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment to the U.S. Constitution.

Even more impressively, the 7th Circuit made its ruling without relying on guidance from the federal government. The Obama administration previously issued guidance encouraging schools to treat transgender students according to their gender identity — leading many districts to adopt trans-friendly policies — but the Trump administration later withdrew that guidance.

“I am thrilled that the 7th 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 the case against the school district.

“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 added.

“This is a great victory for transgender students,” Kris Hayashi, the executive director of Transgender Law Center, said in a statement. “The battleground may be bathrooms, but the real issue is fairness and transgender people’s ability to go to school, to work, and simply to exist in public spaces. This win makes that more possible for more people.”

Whitaker’s case has drawn many parallels to the fight of transgender senior Gavin Grimm in Gloucester, Va., who also sued his local school board after it adopted a policy barring him from using the boys’ restroom. But unlike in Whitaker’s case, the 4th U.S. Circuit Court of Appeals issued an extremely narrow ruling in Grimm’s favor, relying almost entirely on the Obama-era guidance.

Following the rescission of that guidance by the Trump administration, the U.S. Supreme Court ordered the 4th Circuit to rehear Grimm’s case and determine whether he has standing to sue for violations of his Title IX rights. A lower court has not yet ruled on whether Grimm has a right to sue under the Equal Protection Clause of the Fourteenth Amendment.

Other LGBTQ advocates celebrated the decision in Whitaker’s favor.

“Despite the disappointing decision by the Trump Departments of Justice and Education to rescind the Title IX guidance which set forth protections for transgender students, it’s clear that a growing number of courts recognize that all Americans, regardless of gender identity, deserve the full protection of the law,” said Wade Henderson, the president and CEO of The Leadership Conference on Civil and Human Rights.

“This ruling justly affirms the rights of transgender students to attend school free from discrimination,” added Nathan Smith, the director of public policy at GLSEN, who called the decision a “legal vindication” of the need for pro-transgender guidance in schools. 

“The court’s message to schools, school districts and states is clear: you must protect transgender and gender-nonconforming students from discrimination and provide an educational environment in which they can thrive,” Smith said in a statement. “As we have said for some time, federal protections — including Title IX and the Equal Protection Clause of the Fourteenth Amendment — apply to all Americans, regardless of gender identity.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com