A transgender high school student in Kenosha, Wisconsin, has cemented a victory he achieved in the Seventh Circuit Court of Appeals last year. Ashton “Ash” Whitaker’s case, which involved a dispute over transgender bathroom rights, will not go before the Supreme Court of the United States.
Ash is a biological female who, in eighth grade, told his parents that he was transgender and a boy. Ash made his gender identity public knowledge during his freshman year, and he was diagnosed by a therapist with Gender Dysphoria. For the most part, Ash encountered relatively little turbulence – when he wore a tuxedo to an orchestra performance, for example, his teacher, classmates, and the audience displayed no apparent concern. But Ash’s gender identification became a topic of consternation for George Nelson Tremper High School administration when Ash began to use the men’s bathrooms at the school.
The school told Ash that he had to use either the women’s bathrooms or the gender‑neutral bathrooms at the school. At first, Ash ignored the directive, opting instead to continue to use the men’s bathrooms. After a number of months without incident, however, a teacher witnessed Ash using the men’s bathroom, and reported Ash’s bathroom use to the administration. The school went to great lengths to deter Ash from further use of men’s bathrooms, including directing security guards to watch Ash’s behavior and pull him out of class after he had used the men’s bathrooms. The school even furnished keys to Ash for the single‑user gender‑neutral bathrooms in the school – Ash was the only student singled out to be given those keys.
Ash filed an action in federal court, arguing that the school violated Title IX and the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. In Whitaker By Whitaker v Kenosha Unified School District No. 1 Board of Education, the district court imposed a preliminary injunction against the school, forcing the school to discontinue its discriminatory policy against Ash. In May 2017, the Seventh Circuit Court of Appeals upheld the preliminary injunction, which included a finding that Ash had a likelihood of success on the merits of his case. In its Opinion, the Seventh Circuit emphasized that discrimination against Ash on the basis of his transgender status is discrimination on the basis of sex, as it constitutes sex‑stereotyping. That ruling is a big deal because it affirms reasoning that has been used in federal district courts in Florida, Nevada, Michigan, and other places.
The ruling is also noteworthy because, as of yesterday, it is now established and binding law for all territory covered by the Seventh Circuit, including Illinois, Indiana, and Wisconsin. Recently, the Board of Education for the Kenosha Unified School District voted to settle the lawsuit, which included terms requiring the school district to abandon its appeal in front of the Supreme Court of the United States. It also set the school district back $800,000.
The larger battle over transgender rights in schools is far from over, but Ash’s case registers as decisive win for transgender rights activists at this time.