MADISON, Wis. – A federal appeals court says a transgender student who identifies as a male should be able to use the boys’ bathroom at his Wisconsin high school.
Ashton Whitaker, who will graduate from Kenosha’s Tremper High School this week, first asked to use the boys’ bathroom as a sophomore. That set off a nearly yearlong legal battle with the school district.
In September, U.S. District Judge Pamela Pepper granted Whitaker permission to use the boys’ bathroom at school. On Tuesday, the second-to-last day of Whitaker’s senior year, the 7th U.S. Circuit Court of Appeals affirmed that decision.
“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 distributed by the Transgender Law Center. “As I look forward to college next year, 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.”
Ilona Turner, legal director for the Transgender Law Center and one of the attorneys who helped represent Whitaker, said though the ruling only applies to Whitaker, it sets precedent that a federal law prohibiting gender discrimination in public schools protects transgender people.
“This is just another building block on the large and growing number of courts to hold that discrimination against transgender people is illegal,” she said.
Kenosha Unified School District had argued that the federal law doesn’t apply to transgender people as a group and that the harm to other students of Whitaker using the boys’ bathroom, particularly to male students, outweighs any harm to Whitaker. It also urged the appeals court to reconsider whether the case should be thrown out. Ronald Stadler, a lawyer for the school district, didn’t immediately return a message.
U.S. Circuit Court Judge Ann Claire Williams declined to reconsider and rejected the district’s other arguments, saying harms to others are speculative while harms to Whitaker are well-documented. Those include suicidal thoughts as well as medical issues stemming from avoiding the bathroom.
According to the lawsuit, when Whitaker first asked to use the boys’ bathroom, the school said he could either use a gender-neutral bathroom in the school’s main office or the girls’ bathroom. He used the boys’ bathroom anyway without issue for six months, it says, until a teacher saw him washing his hands there and reported it to school administration.
Turner, who works with the Transgender Law Center, said Whitaker’s win could impact a case with the 4th U.S. Circuit Court of Appeals – that of Gavin Grimm, a transgender high school senior in Virginia who sued his school board for the right to use the boys’ bathroom. The U.S. Supreme Court was set to hear his case but sent it back to the lower court after President Donald Trump’s administration revoked guidance from former President Barack Obama directing public schools to allow transgender students to use bathrooms aligned with their gender identities.
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