Another Court Panel Allows Trans Teen to Use Bathroom of His Choice

Another federal circuit court has weighed in on whether transgender school students should be able to select which bathrooms to use and has ruled in the student’s favor.

A three-judge panel of the 7th Circuit Court of Appeals today affirmed an injunction in place telling Kenosha Unified School District in Wisconsin that it can’t refuse to let Ashton Whitaker, 17, use the male facilities.

The panel heard the case yesterday. Read the ruling here.

Whitaker began transitioning into a male in 2014, is currently taking hormones, and has legally changed his name. His school district, however, is refusing to acknowledge his change unless he’s had full reassignment surgery, according to the lawsuit.

They’ve ordered him to use the women’s facilities (even though he looks like a male) or a singular unisex bathroom far from his classes to which none of the other students have access.

He has sued and today the panel unanimously decided in his favor. They chose Whitaker’s interpretation of Title IX (They have to respect his gender identity under the law’s restrictions against sex discrimination.) over the school district’s interpretation (They’re protecting the other students’ privacy with sex-based segregation as permitted under the law). The judges were not impressed with the district’s insistence they were protecting students from harm, dismissing it as all speculative. The school district had no problems with Whitaker using male facilities until they suddenly did:

The School District has not produced any evidence that any students have ever complained about Ash’s presence in the boys’ restroom. Nor have they demonstrated that Ash’s presence has actually caused an invasion of any other student’s privacy. And while the School District claims that preliminary injunctive relief infringes upon parents’ ability to direct the education of their children, it offers no evidence that a parent has ever asserted this right. These claims are all speculative.

This particular federal case matters because it comes after Attorney General Jeff Sessions rescinded an executive branch interpretation of Title IX from under President Barack Obama’s administration. Under Obama, the Department of Justice and Department of Education told schools they must accommodate transgender students based on some current court precedents related to sex-stereotype-based discrimination.

The Supreme Court had been planning to hear this case, in part to look at whether the court should defer to the executive branch when deciding how to apply the law to transgender students. But after Sessions withdrew the order, the Supreme Court kicked the case back down to the 4th Circuit and ordered a new review.

This ruling, then, is not based on any sort of deference to the executive branch on how to interpret Title IX. Instead, the court is using other previous court precedents that determine discrimination on the basis of whether somebody conforms to gender stereotypes is illegal. The panel today determined that Whitaker had a good chance of winning a case that extends that stereotype argument to transgender students. That’s exactly what happened with the case the Supreme Court is considering. So the panel decided to leave in place an injunction allowing Whitaker to continue using the men’s facilities.

This panel ruling doesn’t really change the math or arguments in this debate whatsoever. It’s really more of a sign that this issue is going to continue coming up in the federal courts until the Supreme Court finally weighs in or until Congress passes some sort of legislation clarifying Title IX (and other sex-focused discrimination laws) one way or the other.

Also worth noting: The 7th Circuit is also where the full court ruled that workplace discrimination against people on the basis of being gay or lesbian is also a violation of federal law for the same reason. Even though federal laws don’t directly outlaw discrimination on the basis of sexual orientation, the court accepted the argument that anti-gay discrimination is fundamentally based on gender-based stereotypes and is therefore forbidden.