A federal appeals court ruled on Tuesday that a transgender high school student in Wisconsin has the constitutional and statutory right to use the boys' bathroom even though the student was born a female.
The landmark ruling by the 7th Circuit U.S. Court of Appeals in Chicago supersedes the school's decision to instruct all students to use the bathroom corresponding with their biological sex and could pave the way for the United States Supreme Court to rule on the transgender bathroom issue.
The transgender high school senior, 17-year-old Ashton Whitaker, filed a lawsuit against the Kenosha Unified School District after school administrators refused to let the teen use the boys' bathroom and instead offered up a gender-neutral bathroom in the main office as a reasonable compromise if Whitaker wasn't satisfied with using the girls' bathroom.
In September 2016, District Court Judge Pamela Pepper ruled in the teen's favor, instructing the school to accommodate Whitaker. The school district appealed the ruling, insisting that harm to other students, especially boys using the bathroom, should be prioritized over any harm to Whitaker.
The court rejected the district's analysis, and agreed with Whitaker's argument that by forcing the teen to either use the girls' bathroom or a separate gender-neutral bathroom, the school was violating Title IX, a 1972 Education Amendment that protects students from discrimination based on sex if the school receives any federal funding. It upheld the September injunction instructing the school to accommodate Whitaker based on the student's gender preference. The court's ruling also upheld the lower court's finding that Whitaker had a right under the Equal Protection clause of the 14th Amendment of the United States Constitution to use the boys' restroom.
"Here, the School District’s policy cannot be stated without referencing sex, as the School District decides which bathroom a student may use based upon the sex listed on the student’s birth certificate," wrote U.S. Circuit Court Judge Ann Claire Williams. "This policy is inherently based upon a sex‐classification and heightened review applies."
"The harms identified by the school district are all speculative and based upon conjecture, whereas the harms to Ash are well‐documented and supported by the record. As a consequence, we affirm the grant of preliminary injunctive relief," Williams wrote, according to USA Today.
"I am thrilled that the 7th Circuit recognized my right to be treated as the boy that I am at school," Whitaker said in a statement. "After facing daily humiliation at school last year from being threatened with discipline and being constantly monitored by school staff just to use the bathroom, the district court’s injunction in September allowed me to be a typical senior in high school and to focus on my classes, after-school activities, applying to college, and building lasting friendships."
The ruling, however, comes mere weeks after the Supreme Court decided not to rule on a similar case involving a Virginia student who was suing for bathroom access aligning with the student's gender identity. Instead, the Supreme Court asked the lower court to re-examine the case again, taking into consideration President Donald Trump's executive order rolling back previous transgender school protections originally ordered by former President Barack Obama.
The Gloucester County School Board released a statement expressing their satisfaction with the Supreme Court's move to kick the case back to the 4th Circuit U.S. Court of Appeals.
"The Board looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law," said the school board in a statement.