Bathroom Injunction for Trans Wisconsin Student

     MILWAUKEE (CN) — Resisting a federal judge’s orders to let a transgender boy use the boys’ restroom, a Wisconsin school district is taking its appeal to the Seventh Circuit.
     U.S. District Court Judge Pamela Pepper granted Ash Whitaker the injunction on Sept. 22, citing the “irreparable harm” the teen would face if the Kenosha Unified School District continued monitoring his bathroom activity at Tremper High School and disciplining him for using the boys’ bathroom.
     The ruling says 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.
     When Whitaker began his senior year of high school earlier this month, however, school administrators were still forcing him to use single-stall faculty bathrooms or the girls’ bathrooms.
     “The plaintiff’s spending his last school year trying to avoid using the restroom, living in fear of being disciplined, feeling singled out and stigmatized, being subject to fainting spells or migraines, is not harm that can be rectified by a monetary judgment, or even an award of injunctive relief, after a trial that could take place months or years from now,” Pepper wrote.
     Joseph Wardenski, an attorney for Whitaker with Washington, D.C.-based Relman Dane & Colfax, said in a telephone interview that things have been going “great” for his client this week.
     The injunction has allowed Whitaker to use the boys’ bathroom at his school without incident.
     “He’s just been thrilled to be able to focus on his classes and on his after-school activities in his senior year,” Wardenski said in a telephone interview Tuesday.
     Whitaker brought his lawsuit over the summer, one of many high-profile salvos in the fight over public bathrooms since the U.S. Departments of Justice and Education released guidelines indicating that students should be allowed to use the bathroom that corresponds to their gender identity, regardless of their biological sex.
     Wisconsin is one of 13 states that are fighting these guidelines in separate federal proceedings, and the Kenosha Unified School District has argued repeatedly that the guidelines are not binding.
     Whitaker, an academically proficient student who works part-time at a medical office, noted in his complaint that he began limiting his liquid and food intake during the 9 to 10 hours he spends at school daily when officials refused to let him use the boys’ bathroom.
     Though the school has repeatedly denied this claim, Whitaker also said the school proposed marking transgender students with bright green wristbands to monitor their bathroom and other activity.
     Judge Pepper’s order emphasizes that the school has no written policy to the effect that transgender students must use the bathroom that corresponds to the biological sex listed on their birth certificate.
     She said, other than an unsupported statement that all students have a right to “privacy,” the school has failed to demonstrate how allowing Whitaker to use the bathroom that corresponds to his gender identity would harm it. It has to build no new facilities, nor alter any policy, to comply with the court’s order.
     On the other hand, pulling Whitaker from class to discipline him is harmful, the court found.
     “The Seventh Circuit has recognized that discrimination that impacts one’s ability to focus and learn constitutes harm,” Pepper wrote.
     While Pepper noted in an earlier ruling that she has not factually determined whether Whitaker “was male or female,” the judge now says this question is immaterial, as the school is discriminating in either possible instance.
     If Whitaker is female, as the school insists, it is punishing him for not complying with the stereotypes and norms associated with his gender.
     If male, as the teen and his doctors insist, it is punishing him for being transgender, and discrimination on that basis “easily” constitutes discrimination based on gender, Pepper wrote.
     Ronald Stadler, the school district’s attorney, filed the notice of appeal to the Seventh Circuit on Sept. 23.
     Wardenski said the appeal was expected, and that the briefing schedule at the appeals level extends into late December as of now.
     District spokeswoman Tanya Ruder emailed a statement from Stadler that says the district was disappointed in the decision and is reviewing its options.
     Despite acknowledging that the order is binding, Stadler believes it is limited in scope.”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 statement reads.

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