In Whitaker v. Kenosha Unified School District, the Seventh Circuit Court of Appeals ruled in favor of a transgender male student who requested access to male bathrooms. The student, Ash Whitaker, “began to openly identify as a boy during the 2013-2014 school year…He cut his hair, began to wear more masculine clothing, and began to use the name Ashton and male pronouns.” Towards the end of his sophomore year, Ash met with his guidance counselor and his parent to request access to the male restrooms while at school and school-sponsored events.
Kenosha Unified School District denied Ash access to the male facilities, citing the privacy rights of other students. The school district told Ash that “the administration had decided that he could only use the girls’ restrooms or a gender-neutral restroom that was in the school’s main office.”
When Ash started his junior year of high school, he “exclusively used the boys’ restrooms at school without incident,” for several months until he was spotted by a teacher who reported it to the school administration. At this time, the school district “stated that Ash was not permitted to use the boys’ restrooms. However, the reason she gave this time was that he was listed as a female in the school’s official records and to change those records, the school needed unspecified legal or medical documentation.” Ash submitted letters from his physician, hoping that they would serve as sufficient medical documentation to support his request to use the male restrooms. However, “the school maintained that Ash would have to complete a surgical transition…to be permitted access to the boys’ restroom.”
Ash filed a lawsuit challenging the school district’s policy as discriminatory. Ash also requested a preliminary injunction to allow him to use the facilities with which he identified pending a trial on the merits.
The trial court granted the preliminary injunction and the school district appealed. The Seventh Circuit agreed with the student, finding that the policy was likely discriminatory and a violation of Title IX and the Equal Protection Clause. Therefore, Ash will be allowed to use the male facilities pending the trial on the merits in the trial court.
As always, HLERK will follow and report on the developments in this area of the law.
For your questions on transgender students, please contact Michelle Todd or Kaitlin Atlas.