Court Battles

Appeals court sides with transgender student in bathroom fight


The Chicago-based 7th Circuit Court of Appeals ruled Tuesday that a transgender student has the right to use the bathroom that corresponds with his gender identity under federal law.

In a unanimous opinion, the court upheld a lower district court order allowing Ashton Whitaker, a 17-year-old senior at Tremper High School in Kenosha, Wis., to use the boys’ bathroom despite the school’s claim that Whitaker’s presence in the boys’ bathroom would invade the privacy rights of his male classmates.

In delivering the opinion of the court, Judge Ann Claire Williams said the school district failed to provide any evidence of how the preliminary injunction would harm the school or any of its students or parents.

“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,” she said.

{mosads}In the 35-page opinion, Williams said a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX anti-discrimination laws.

“The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX,” she said.

Though the school created a separate bathroom for only Whitaker to use, Williams said that only “exacerbated the harm.”

“This action further stigmatized Ash, indicating that he was ‘different’ because he was a transgender boy,” she wrote.  

LGBT rights advocates were quick to hail the decision, calling it “groundbreaking.”

The Transgender Law Center said this is the first federal appeals court to find conclusively that a transgender student has the right to be treated in accordance with the student’s gender identity at school under both Title IX and the Constitution.

The group claims it is also the first decision to reach that conclusion without reliance on the Obama administration’s guidance on schools’ Title IX obligations to transgender students, which the Trump administration rescinded in February.

The Supreme Court in March tossed out a ruling that allowed Gavin Grimm, a transgender boy in Virginia, to use the bathroom he chooses and ordered a lower court to reconsider the case in light of that new guidance.

The justices had planned to hear arguments in the case before Attorney General Jeff Sessions and Education Secretary Betsy DeVos rescinded the Obama-era guidance that said schools should allow transgender students to use the bathrooms corresponding to their gender identity, claiming those rights were covered federal anti-discrimination laws addressing “sex.”

In withdrawing that guidance, the Trump administration said the Obama administration failed to “explain how the position is consistent with the express language of Title IX” but didn’t make their own case for whether Title IX applies.

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