Metro Weekly

Wisconsin school district asks Supreme Court to take up transgender case

Kenosha Unified School District wants high court to determine whether Title IX applies to transgender students

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

A Wisconsin school district has filed a petition asking the U.S. Supreme Court to hear the case of a transgender high school student who sued the district for barring him from using the boys’ restroom, reports the Milwaukee Journal Sentinel.

The Kenosha Unified School District wants the Supreme Court to review a May decision by the 7th U.S. Circuit Court of Appeals, which allows 18-year-old Ashton Whitaker, a senior at Tremper High School, to use the bathroom matching his gender identity when he attends school.

The 7th Circuit unanimously ruled that the school district violated Title IX’s prohibitions on sex-based discrimination by engaging in “sex-stereotyping” against Whitaker. The court also found that its bathroom policy warranted heightened scrutiny under the Constitution’s equal protection clause.

The district claimed that it was a “matter of national importance” that the Supreme Court weigh in on — and preferably reverse — the 7th Circuit’s decision. The district also claims that while the 7th Circuit’s decision only dealt with restroom access, it could have wide-ranging effects on other issues where transgender students might demand to be accorded to their gender identity, including with respect to locker room access, showers, and sleeping arrangements on overnight trips.

“We are looking for clarification from the Supreme Court so everyone knows what their responsibilities and protections are, both under Title IX and the equal protection clause,” Ronald Stadler, a Milwaukee attorney who filed the petition on behalf of the district.

Whitaker’s lawyers with the Transgender Law Center, a national transgender rights organization based out of Oakland, Calif., issued their own statement noting that the federal district and appeals courts have ruled “unambiguously” that the district violated Whitaker’s rights and subjected him to unnecessary harm.

“We’re disappointed that [the district], instead of accepting these rulings, has chosen to waste time and money by filing an ill-conceived petition for review with the Supreme Court,” the statement reads.

Whitaker’s case has frequently drawn comparisons to the case of Virginia teenager Gavin Grimm, a recent high school graduate who had sued his local school district over its policy barring him from the boys’ restroom. Grimm sued, and the 4th U.S. Circuit Court of Appeals, in a narrowly-tailored decision, found that the Obama Department of Education’s interpretation of Title IX entitled Grimm to be able to use the boys’ restroom, rather than a segregated unisex facility.

The case was scheduled to be heard by the Supreme Court earlier this year, but was sent back to the 4th Circuit, and subsequently, to the district court, after the Trump administration rescinded the Obama administration’s guidance on transgender students, which recommended that school districts treat them according to their gender identity, rather than their assigned sex at birth.

If the high court chooses to take Whitaker’s case, it would offer the court a new opportunity to address some of the same issues raised in the Grimm case, including whether Title IX’s protections against sex-based discrimination can apply to students discriminated against on the basis of their gender identity.

However, unlike with Grimm’s case, the 7th Circuit’s decision in Whitaker’s lawsuit was not based on guidance from the Department of Education, meaning that the court would have to at least consider whether to embrace a broader interpretation of what constitutes sex-based discrimination, and whether it applies to LGBTQ people.

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