CHICAGO (CN) – In oral arguments Wednesday, the Seventh Circuit was highly skeptical of a Wisconsin school district’s insistence that sex be defined by what is listed on a child’s birth certificate and repeatedly compared its strict bathroom segregation policy to Jim Crow laws.
Last year, a federal judge granted Ash Whitaker, a transgender boy, an injunction against the Kenosha Unified School District’s policy prohibiting him from using the boys’ bathroom.
The injunction has allowed Whitaker to use the boys’ bathroom at Tremper High School without incident for the past six 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.
At oral arguments Wednesday in the school district’s appeal of the injunction, counsel for the district, Ronald Stadler, swiftly quoted Seventh Circuit precedent, citing its 1984 decision in Ulane v. Eastern Airlines.
In Ulane, the court ruled, “The words of Title VII do not outlast discrimination against a person who has a sexual identity disorder,” which is how the court then defined transsexuality. The opinion said Title VII prohibits discrimination “against women because they are women and against men because they are men.”
Chief Judge Diane Wood dryly responded, “Sounds to me rather tautological.”
She repeatedly pressed Stadler to answer what she called the “key question” in this case, “Is Whitaker a boy?”
Stadler answered no.
“As a matter of law, Ash Whitaker’s sex is defined on his birth certificate,” Stadler said. “I don’t believe people have a unilateral right to change their sex.”
He argued that the words “sex” and “gender” were often used to mean the same thing in prior caselaw, but that Title VII should be read as only protecting discrimination against a person based on their sex, not their gender.
“We treat men and women exactly the same,” Stadler said.
Wood replied, “So it’s a separate but equal argument.”
“It is not discriminatory based on sex,” Stadler responded.
Judge Ann Claire Williams asked how the school district’s bathroom policy compared to Jim Crow laws that segregated bathrooms by race and punished people who used the non-corresponding bathroom.
Stadler said that Jim Crow was different because the law explicitly provides that schools may have different bathrooms and locker rooms for boys and girls – an argument Wood noted would have also been used in defense of Jim Crow laws, mentioning the Oscar-nominated movie “Hidden Figures.”
No one suggested Wednesday morning that all bathrooms should be unisex.
In fact, Whitaker’s attorney Joseph Wardenski said Whitaker has been unfairly ostracized by the school’s treatment of him as some kind of “third sex,” and did not support Wood’s proposal that the school could provide unisex bathrooms in addition to gender-segregated facilities.
“Our position is that you can be a boy and also be transgender,” Wardenski told the court. He later added, “A transgender student who consistently asserts their gender should be treated as the gender with which they identify.”
Williams also asked Wardenski to compare the transgender bathroom dispute with Jim Crow laws.
He replied that the issues were absolutely comparable.
“Others’ discomfort with other people sharing a restroom has a long history,” Wardenski said. However, he noted that no one has been harmed by a transgender persons’ use of a bathroom, except by suffering some discomfort.
Judge Illana Rovner, appearing by video feed, rounded out the all-female, three-judge panel. No timetable has been set for the court's decision.
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