CHICAGO (CN) – Citing “common sense,” the Seventh Circuit ruled Tuesday that a Wisconsin school district must allow a transgender boy to use the boys’ bathroom.
A federal judge last year granted Ash Whitaker an injunction against the Kenosha Unified School District’s policy prohibiting him from using the boys’ restroom.
The injunction allowed him to use the boys’ bathroom at Tremper High School without incident for the past eight months.
Whitaker stopped living as female, as his birth certificate identifies him, in middle school. He began transitioning publicly in the 2013-14 school year and has been receiving testosterone treatment under the care of a clinical psychologist since July 2016.
Under Wisconsin law, however, he may not change the sex listed on his birth certificate unless he undergoes gender reassignment surgery.
The school district appealed the injunction, arguing before a skeptical all-female Seventh Circuit panel that Title IX protects from discrimination against a person based on sex, not gender.
Seventh Circuit Judge Ann Claire Williams, a black woman, repeatedly pressed the school district to explain how its bathroom policy differed from Jim Crow laws that segregated bathrooms by race and punished people who used the non-corresponding bathroom.
The Seventh Circuit on Tuesday found that Whitaker would suffer irreparable harm without being allowed to use the boy’s room.
“The School District repeatedly asserts that Ash may not ‘unilaterally declare’ his gender[;] this argument misrepresents Ash’s claims and dismisses his transgender status,” Williams wrote for the circuit. “This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain. Therefore, we find that Ash has sufficiently established a probability of success on the merits of his Title IX claim.”
The court said that providing a gender-neutral single-stall bathroom was not a viable solution because forcing Ash to use this restroom exacerbated his psychological distress at being treated differently from other students.
Also, the school asserted an interest in ensuring other students’ privacy rights, but did not present not a single complaint from another student about Ash’s use of the boys’ bathroom. One complaint from a parent is not sufficient to support the school’s position, the panel ruled.
“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,” Williams said.
The decision was viewed as a major victory for LGBT rights after Attorney General Jeff Sessions and Education Secretary Betsy DeVos rescinded the Obama administration’s guidance on schools’ Title IX obligations to transgender students.
In March, the Supreme Court remanded a Virginia transgender student’s lawsuit seeking to use the boys’ bathroom at school, citing the Trump administration’s rollback of protections.
The Seventh Circuit’s opinion is the first ruling on the issue since the Obama administration’s guidance was tossed out.
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