September 20, 2016 at 6:29 pm EDT | by Chris Johnson
Judge rules for Wis. trans student in battle over bathroom access
trans student, gay news, Washington Blade

Melissa and Ashton Whitaker (Photo courtesy Transgender Law Center)

A federal judge has ruled in favor of a Wisconsin transgender student whose school had barred him from using the public restroom consistent with his gender identity, according to the LGBT legal group representing the student.

U.S. District Judge Pamela Pepper, an Obama appointee, read aloud from the bench Tuesday her order barring Kenosha Unified School District from forcing 17-year-old student Ashton Whitaker to use a restroom separate from all other students.

“For the first time this year, I feel like I can actually make it through my senior year of high school just like any other boy in my class,” Whitaker said in a statement. “It’s awful going to school every day with the constant stress and stigma from being segregated from my peers and from administrators watching my every move just because of who I am. I’m so relieved I’ll be able to just go to class, apply to college and graduate without worrying if I’ll get in trouble for using the restroom.”

The litigation, one of several pending lawsuits over whether schools and other entities can deny transgender people access to bathroom consistent with their gender identity, was filed in July on behalf of Whitaker by the San Francisco-based Transgender Law Center as well as the D.C-based Relman, Dane & Colfax PLLC and the Milwaukee-based Pledl & Cohn.

Whitaker’s attorneys argued denying him access to the public restroom consistent with his gender identity violated his rights under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of gender in schools, and the Fourteenth Amendment to the U.S. Constitution.

According to the Transgender Law Center, the judge held Whitaker would continue to suffer irreparable harm if his school continued to deny him access to the boys’ restroom during his senior year of high school. The judge, according to the Transgender Law Center, “explicitly recognized the emotional, psychological and physical harm Whitaker has endured under KUSD’s discriminatory policy and the importance to transgender people of being treated in accordance with their gender identity.”

Kris Hayashi, executive director of the Transgender Law Center, said his organization is “thrilled for Ash” and glad the judge “recognized the urgent need to address the harm the school’s policy has caused him.”

Transgender students, like all students, should have the opportunity to go to school and get an education without being singled out for harassment and discrimination by school administrators,” Hayashi said.

Ronald Stadler, who’s representing Kenosha Unified School District as an attorney with the Milwaukee-based firm Mallery & Zimmerman, said the school is “disappointed” by the decision, but bound by the order as officials consider whether to appeal to the 7th Circuit Court of Appeals.

“Until an appeal can be made to the 7th Circuit Court of Appeals the District must follow the order,” Stadler said. “If the appeal is filed, the [school] district will ask the district court to stay its temporary injunction order until the Court of Appeals resolves these legal issues. This order only affects the plaintiff in this case and the district will continue with all policies and procedures that were in place prior to the case for all other students. The district, like many others in the nation, looks forward to the final decision in this case.”

The decision comes the day after the judge denied the school district’s motion to dismiss the case. According to Transgender Law Center, the school has indicated it will appeal the preliminary injunction as well as the decision denying the motion to dismiss the case. 

Joseph Wardenski, an attorney at Relman, Dane & Colfax representing Whitaker, predicted victory in the lawsuit upon appeal to Seventh Circuit.

“We expect that the Seventh Circuit will affirm the lower court’s decision and follow the lead of the majority of courts that have made clear that Title IX and the Constitution protect transgender students from being segregated from and treated differently than their peers,” Wardenski said.

The decision is contrary to the decision U.S. District Judge Reed O’Connor issued last month against the Obama administration’s guidance barring schools from discriminating against transgender students, such as by denying them access to the restroom consistent with their gender identity. The U.S. Justice Department has responded with filings seeking clarification on the order, saying it should restricted to the guidance and not other actions in the federal government.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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