A federal appeals court essentially sidestepped the Trump administration by ruling that a 17-year-old transgender student from Wisconsin can use the boys’ bathroom — and the case has the potential to help trans students across the country.
In a unanimous decision, the three-judge Seventh Circuit Court of Appeals said Tuesday that Ash Whitaker, a senior at Tremper High School, can use facilities consistent with his gender identity under the protections of Title IX, a law that prohibits sex discrimination in schools receiving federal funds.
The ruling is good news for LGBTQ students and advocates who have received mostly bad news this year related to Title IX. In February, Attorney General Jeff Sessions and Education Secretary Betsy DeVos jointly rescinded Obama-era guidance on the interpretation of the law regarding transgender students. That in turn led the Supreme Court to decline to hear the case of transgender teen Gavin Grimm, which relied on the Obama-era guidance.
But the ruling in Whitaker v. Kenosha Unified School District says trans students are protected by Title IX irrespective of the Obama-era guidance. It marks the first time a federal court has ruled that an anti-discrimination law applies to transgender Americans, and it stands to be cited in future legal battles over transgender rights.
“It is certainly an important case,” said Ruthann Robson, a professor specializing in LGBT issues at the City University of New York School of Law. “Courts are beginning to decide that prohibitions against inequality based on sex include discrimination based on transgender status. This unanimous opinion from the Seventh Circuit in the heartland of the nation… is a bellwether.”
In her majority opinion, Seventh Circuit Judge Ann Claire Williams said the school district’s argument that giving Whitaker access to boys’ bathrooms would impinge upon other students’ privacy rights “is based upon sheer conjecture and abstraction.” Williams also noted that Whitaker used the boys’ restrooms “without incident” for six months until a teacher noticed and reported him to the administration. The school then gave Whitaker a key to two single-occupancy gender-neutral bathrooms located across campus from his classes.
Whitaker reportedly became depressed and anxious, and developed health issues that resulted from avoiding urination for long periods of time. “The harms to Whitaker are well-documented and supported by the record,” Williams wrote.
Whitaker also says he was initially blocked from running for prom king and that school administrators insisted on referring to him with female pronouns and his birth name. They also housed him with female students or alone during school trips.
While Whitaker’s case dealt with a federal law, there are few protections for transgender students at the state level. Only four states and Washington, D.C. have laws containing explicit language allowing bathroom access consistent with a student’s gender identity. This year alone, legislators in 16 states have introduced so-called “bathroom bills” to forbid that access. Thus far, none have passed.
“This is a great victory for transgender students,” Kris Hayashi, executive director of the Transgender Law Center, said of the Whitaker verdict in a statement. “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. This win makes that more possible for more people.”