Appeals court smacks down Wisconsin school’s anti-transgender discrimination

The district’s arguments are “based upon sheer conjecture and abstraction.”

Ash Whitaker with his mom, Melissa. CREDIT: Transgender Law Center
Ash Whitaker with his mom, Melissa. CREDIT: Transgender Law Center

The U.S. Court of Appeals for the Seventh Circuit likely just handed the Supreme Court a new case about a transgender student to consider. The Court’s opinion, issued Tuesday, eviscerates a Wisconsin school’s arguments for discriminating against one of its students.

Ashton Whitaker (“Ash”), now a 17-year-old senior, first filed suit against Kenosha Unified School District a little over a year ago, arguing that the school was illegally discriminating against him by prohibiting him from accessing the boys’ restrooms. He had previously used the restroom for six months without incident before the new policy was implemented. Ash was instead forced to using single-stall restrooms that were very far away from his classes and that further stigmatized him among his classmates. His bathroom usage was then policed, with the school even considering requiring him to wear bright green wristbands or stickers to easily identify him, though it never actually took that step.

Back in September, U.S. District Judge Pamela Pepper granted Ash a preliminary injunction against the policy, ensuring he could use the facilities that match his gender identity throughout his senior year. The school appealed, but Tuesday’s ruling upholds the injunction, allowing Ash to finish out the school year without being segregated because he is transgender.

The decision is very unforgiving of the school’s arguments against Ash’s integration, to say the least.

For example, the district claimed that Ash’s harm was “self-inflicted” because he didn’t take advantage of the accommodations that were provided. The decision noted that this argument fails for a number of reasons. First, segregating him to a separate bathroom caused anxiety related to his transition, as well as the fact that it invited scrutiny from his peers. This anxiety prompted Ash to avoid drinking water to avoid using the restrooms, which exacerbated physical symptoms he experiences due to his vasovagal syncope, a condition that causes him to experience fainting and/or seizures when dehydrated.

This was all in addition to the fact that the bathrooms were on the opposite side of the building from his classes. “Therefore,” the Court wrote, “he was faced with the unenviable choice between using a bathroom that would further stigmatize him and cause him to miss class time, or avoid use of the bathroom altogether at the expense of his health.”

The district had in turn argued that allowing Ash to use the boys’ bathrooms would somehow infringe on “the privacy rights of all 22,160 students” in the district. The Court dismissed this argument as being “based upon sheer conjecture and abstraction.”

Ash had used the boys’ bathroom for six months without incident. It was only after a teacher — not a student — noticed him using the bathroom that the policy was implemented. The district also claimed to have received just one complaint, and it was from a parent — again, not a student. The Court further countered that this reasoning “ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”

Indeed, the Court went a step further to rebuke the argument that trans students’ pose any threat in school restrooms:

A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.

What’s particularly striking about the case is just how inconsistent the district’s implementation of the policy was. District officials had told Ash’s family that the only way it could change its records to recognize him as male was if he obtained a surgical transition, but did not explain why. “In fact,” the decision notes, “the School District has never provided any written document that details when the policy went into effect, what the policy is, or how one can change his status under the policy.”

It could be because Wisconsin similarly requires gender confirmation surgery before someone can change the sex on a birth certificate — surgery Ash is too young to receive, assuming he’d even find it necessary, worthwhile, and financially feasible. But the Court even highlighted the way this reasoning fails. First, it creates a double standard, because a trans student born in neighboring Minnesota — where surgery is not required — could easily change their birth certificate in a way Ash could not. Moreover, the district itself doesn’t actually require a birth certificate for students to enroll; they can also use a passport, and federal law does allow passports to have their gender marker changed without surgery. It thus makes no sense to base the unwritten policy on birth certificates — except as a way to discriminate against trans students like Ash.

In short, it’s a big win for Ash, and it might also mean that Ash’s case could come before the Supreme Court.

Earlier this year, the Supreme Court was primed to hear the case of Gavin Grimm, a transgender boy who similarly sued the Gloucester County School Board when he was denied access to the boys’ bathrooms. The Court of Appeals for the Fourth Circuit had ruled in Grimm’s favor, but that decision was based on the Obama administration’s guidance protecting transgender students. When the Trump administration rescinded that guidance, it undermined Grimm’s win and the Supreme Court kicked the case back down to the Fourth Circuit for reconsideration.

The Seventh Circuit’s opinion in Ash’s case was not based on that guidance, though it did rely on the same principle. It concluded that the school was violating Title IX, which provides protections on the basis of sex, by not accommodating Ash’s gender identity. It also speculated that this segregation was in violation of the Constitution’s Equal Protection Clause.

If the school appeals, the case could be ripe for the Supreme Court’s review. In the meantime, it sets an important new precedent for protecting transgender students in Wisconsin, Illinois, and Indiana.