May 30, 2017 at 5:57 pm EDT | by Chris Johnson
7th Circuit affirms bathroom access for trans student

The 7th Circuit has affirmed bathroom access for Ashton Whitaker, shown here with his mother. (Photo courtesy Transgender Law Center)

In another legal decision affirming federal law ensures bathroom access for transgender students, a federal appeals court has determined a transgender student in Wisconsin must be allowed access to restrooms at his high school consistent with his gender identity.

In a 35-page decision, a three-judge panel the U.S. Seventh Circuit Court of Appeals ruled unanimously in favor of Ashton Whitaker, a 17-year-old who sued Kenosha Unified School District for requiring him to use a restroom separate from one used by all other students.

Writing for the court, U.S. Circuit Judge Ann Claire Williams, an Obama appointee, determined Title IX of the Education Amendment of 1972, which bars discrimination in schools on the basis of sex, applies to Ash’s situation.

“A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX,” Williams writes.

Joining Williams in the decision was U.S. Circuit Judge Ilana Rovner, an appointee of George W. Bush, and U.S. Circuit Judge Diane Wood, a Clinton appointee.

The decision upholds a preliminary injunction U.S. District Judge Pamela Pepper, an Obama appointee, issued in September requiring Kenosha Unified School District to change its policy.

Ash said in a statement he’s “thrilled” the Seventh Circuit determined that Pepper’s decision should stand as the litigation and his studies continue.

“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,” Ash said.

According to the court decision, Ash’s school informed him after he transitioned he couldn’t use the boys’ restroom, only the girl’s restroom or a gender-neutral facility some distance from his classes. Fearful of missing class and being punished for being late, Ash limited his water intake in school so he wouldn’t have to use the restroom, but suffered health consequences as a result. Ash several times contemplated suicide, the decision says.

Williams cites as a precedent for interpreting Title IX to apply to Ash the U.S. Supreme Court rulings in Price Waterhouse v. Hopkins in 1989 and Oncale v. Sundowner Offshore Services in 1998, which instructs schools to construe sex stereotyping as sex discrimination. 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.

“The School District argues that even under a sex‐stereotyping theory, Ash cannot 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. “Instead, it contends that as a matter of law, requiring a biological female to use the women’s bathroom is not sex‐stereotyping. However, this view is too narrow. By definition, a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was assigned at birth.”

The 7th Circuit ruling is the latest in a series of court decisions that have determined Title IX ensures bathroom access for transgender students, even though the law makes no explicit mention of transgender students.

Representing Ash in his litigation is the San Francisco-based Transgender Law Center, the D.C.-based law firm Relman, Dane & Colfax PLLC; and Milwaukee-based attorney Robert Theine Pledl of McNally Peterson, S.C.

Kris Hayashi, executive director for the Transgender Law Center, said in a statement the decision is “a great victory for transgender students.”

“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,” Hayashi said. “This win makes that more possible for more people.”

The 7th Circuit reached the conclusion transgender students are protected under Title IX even though the Trump administration has revoked Obama-era guidance that determined barring transgender kids from the bathroom matching their gender identity violates that law.

Mara Keisling, executive director of the National Center for Transgender Equality, also hailed the decision as a victory for transgender people.

“This powerful decision — another in a growing list of rulings affirming the Constitutional rights of transgender people — helps Ash and tens of thousands of students like him get the same opportunity to learn as any other student,” Keisling said. “It recognizes that fully respecting and including transgender students like Ash Whitaker is legally and morally the right thing to do, and that discrimination against these young people because of who they are is cruel, wrong and illegal.”

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

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