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7th Circuit affirms bathroom access for trans student

Court unanimously determines Title IX protects transgender student

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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.”

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Eswatini

PEPFAR delivers first doses of groundbreaking HIV prevention drug to two African countries

Lenacapavir now available in Eswatini and Zambia.

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World AIDS Day 2023 at the White House. PEPFAR has distributed the first doses of lenacapavir to the African countries of Eswatini and Zambia. (Washington Blade Photo by Michael Key)

The State Department on Tuesday announced PEPFAR has delivered the first doses of a groundbreaking HIV prevention drug to two African countries.

The lenacapavir doses arrived in Eswatini and Zambia.

The State Department in September unveiled an initiative with Gilead Sciences to bring lenacapavir “to market in high-burden HIV countries.”

Lenacapavir users inject the drug twice a year.

The State Department in its September announcement noted everyone who participated in Gilead’s clinical trials remained HIV negative. It also said lenacapavir “has the potential to be particularly helpful for pregnant and breastfeeding mothers, as it safely protects them during and after pregnancy to prevent mother-to-child transmission.”

“In our new America First Global Health Strategy, the Department of State is establishing a first-of-its-kind innovation fund to support American-led research, market-shaping, and other dynamic advancements in global health,” said PEPFAR on Tuesday in a press release.

“The arrivals of the first doses of lenacapavir in Eswatini and Zambia mark an important milestone in HIV prevention and reflect our commitment to supporting communities with the greatest need,” added Gilead CEO Daniel O’Day. “For the first time, a new HIV medicine is reaching communities in sub-Saharan Africa in the same year as its U.S. approval.”

The September announcement came against the backdrop of widespread criticism over the Trump-Vance administration’s reported plans to not fully fund PEPFAR and to cut domestic HIV/AIDS funding. The Washington Blade has previously reported PEPFAR-funded programs in Kenya and other African countries have been forced to curtail services or even close because of U.S. funding cuts.

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National

213 House members ask Speaker Johnson to condemn anti-trans rhetoric

Letter cites ‘demonizing and dehumanizing’ language

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Rep. Sarah McBride is the first signatory to the letter asking Speaker Johnson to condemn anti-trans rhetoric. (Washington Blade file photo by Michael Key)

The Congressional Equality Caucus has sent a letter urging Speaker of the House Mike Johnson to condemn the surge in anti-trans rhetoric coming from members of Congress.

The letter, signed by 213 members, criticizes Johnson for permitting some lawmakers to use “demonizing and dehumanizing” language directed at the transgender community.

The first signature on the letter is Rep. Sarah McBride of Delaware, the only transgender member of Congress.

It also includes signatures from Leader Hakeem Jeffries (NY-08), Democratic Whip Katherine Clark (MA-05), House Democratic Caucus Chair Pete Aguilar (CA-33), every member of the Congressional Equality Caucus, and members of every major House Democratic ideological caucus.

Some House Republicans have used slurs to address members of the transgender community during official business, including in committee hearings and on the House floor.

The House has strict rules governing proper language—rules the letter directly cites—while noting that no corrective action was taken by the Chair or Speaker Pro Tempore when these violations occurred.

The letter also calls out members of Congress—though none by name—for inappropriate comments, including calls to institutionalize all transgender people, references to transgender people as mentally ill, and false claims portraying them as inherently violent or as a national security threat.

Citing FBI data, the letter notes that 463 hate crime incidents were reported due to gender identity bias. It also references a 2023 Williams Institute report showing that transgender people are more than four times more likely than cisgender people to experience violent victimization, despite making up less than 2% of the U.S. population.

The letter ends with a renewed plea for Speaker Johnson to take appropriate measures to protect not only the trans member of Congress from harassment, but also transgender people across the country.

“We urge you to condemn the rise in dehumanizing rhetoric targeting the transgender community and to ensure members of your conference are abiding by rules of decorum and not using their platforms to demonize and scapegoat the transgender community, including by ensuring members are not using slurs to refer to the transgender community.”

The full letter, including the complete list of signatories, can be found at equality.house.gov. (https://equality.house.gov/sites/evo-subsites/equality.house.gov/files/evo-media-document/letter-to-speaker-johnson-on-anti-transgender-rhetoric-enforcing-rules-of-decorum.pdf

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The White House

EXCLUSIVE: Garcia, Markey reintroduce bill to require US promotes LGBTQ rights abroad

International Human Rights Defense Act also calls for permanent special envoy

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The U.S. Embassy in El Salvador marks Pride in 2023. (Photo courtesy of the U.S. Embassy of El Salvador's Facebook page.)

Two lawmakers on Monday have reintroduced a bill that would require the State Department to promote LGBTQ rights abroad.

A press release notes the International Human Rights Defense Act that U.S. Sen. Edward Markey (D-Mass.) and U.S. Rep. Robert Garcia (D-Calif.) introduced would “direct” the State Department “to monitor and respond to violence against LGBTQ+ people worldwide, while creating a comprehensive plan to combat discrimination, criminalization, and hate-motivated attacks against LGBTQ+ communities” and “formally establish a special envoy to coordinate LGBTQ+ policies across the State Department.”

 “LGBTQ+ people here at home and around the world continue to face escalating violence, discrimination, and rollbacks of their rights, and we must act now,” said Garcia in the press release. “This bill will stand up for LGBTQ+ communities at home and abroad, and show the world that our nation can be a leader when it comes to protecting dignity and human rights once again.”

Markey, Garcia, and U.S. Rep. Sara Jacobs (D-Calif.) in 2023 introduced the International Human Rights Defense Act. Markey and former California Congressman Alan Lowenthal in 2019 sponsored the same bill.

The promotion of LGBTQ and intersex rights was a cornerstone of the Biden-Harris administration’s overall foreign policy.

The global LGBTQ and intersex rights movement since the Trump-Vance administration froze nearly all U.S. foreign aid has lost more than an estimated $50 million in funding.

The U.S. Agency for International Development, which funded dozens of advocacy groups around the world, officially shut down on July 1. Secretary of State Marco Rubio earlier this year said the State Department would administer the remaining 17 percent of USAID contracts that had not been cancelled.

Then-President Joe Biden in 2021 named Jessica Stern — the former executive director of Outright International — as his administration’s special U.S. envoy for the promotion of LGBTQ and intersex rights.

The Trump-Vance White House has not named anyone to the position.

Stern, who co-founded the Alliance for Diplomacy and Justice after she left the government, is among those who sharply criticized the removal of LGBTQ- and intersex-specific references from the State Department’s 2024 human rights report.

“It is deliberate erasure,” said Stern in August after the State Department released the report.

The Congressional Equality Caucus in a Sept. 9 letter to Rubio urged the State Department to once again include LGBTQ and intersex people in their annual human rights reports. Garcia, U.S. Reps. Julie Johnson (D-Texas), and Sarah McBride (D-Del.), who chair the group’s International LGBTQI+ Rights Task Force, spearheaded the letter.

“We must recommit the United States to the defense of human rights and the promotion of equality and justice around the world,” said Markey in response to the International Human Rights Defense Act that he and Garcia introduced. “It is as important as ever that we stand up and protect LGBTQ+ individuals from the Trump administration’s cruel attempts to further marginalize this community. I will continue to fight alongside LGBTQ+ individuals for a world that recognizes that LGBTQ+ rights are human rights.”

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