A transgender 16-year-old boy from Wisconsin filed a federal lawsuit Tuesday alleging that his school district violated his civil rights by refusing to treat him as a boy, including by requiring him to use the girls’ bathroom, directing security guards to monitor his restroom use and repeatedly referring to him by his birth name and female pronouns.
The complaint against the Kenosha Unified School District No. 1 was filed on the same day a transgender boy from Maryland filed a similar federal lawsuit, a sign of the intensifying legal battle over the rights of transgender students in the nation’s public schools.
A Kenosha school district spokeswoman did not immediately respond to a request for comment late Tuesday.
The student’s lawyers identified him as Ash Whitaker, an honors student at Kenosha’s George Nelson Tremper High School who is involved in extracurricular activities ranging from the orchestra and tennis team to the Astronomical Society.
Whitaker made national headlines in April when he tried to run for prom king, but his school told him he had to run for prom queen instead. Whitaker publicly challenged that ruling, aided by 7,000 people who signed an online petition and 70 students at his school who staged a sit-in to support him. The district ultimately reversed course.
“My peers and many of my teachers know me as a boy, and have been incredibly supportive,” Whitaker said in a statement. “But the school administrators have made my life miserable every school day since this spring, when they told me I could no longer use the boys’ restrooms, which I’d been using with the support of my classmates for months. I worry about how I’m going to navigate the demands of senior year if I can’t even go to the bathroom without worrying that I’m being watched.”
Whitaker also alleges that district officials required him to room with girls during a trip to Europe with the school orchestra even though he felt uncomfortable doing so.
And the lawsuit accuses the district of devising a plan to identify transgender students by having them wear bright green wristbands, a move that the plaintiff argues would stigmatize him and other transgender students and leave them vulnerable to harassment.
“Transgender youth should have the same opportunity as all other students to go to school and get an education without being singled out for harassment and discrimination by school administrators,” said Kris Hayashi, the executive director of the Transgender Law Center, which is representing Whitaker along with lawyers from firms in Milwaukee and Washington, D.C.
Whitaker was identified as a female at birth and lived as a girl until middle school, when he realized he was a boy and began feeling “profound discomfort” with others’ assumption that he was female, according to the complaint.
He came out as transgender to his parents at the end of eighth grade and began, under the guidance of doctors and therapists, to transition to living as a male.
During his sophomore year, he told all of his teachers and peers that he is a boy, and — with his mother, a teacher at Tremper High — asked school officials for permission to use the boys’ bathroom. Administrators denied that request, telling Whitaker that he could choose between using the girls’ bathroom or a single-occupancy bathroom in the school office.
That decision left Whitaker feeling “overwhelmed, helpless, hopeless, and alone,” according to the complaint. But that summer, while he was on a trip to Europe with the school orchestra, he was “elated” to learn that the Justice Department was supporting Gavin Grimm, a Virginia transgender teenager who had sued his school district over access to the boys’ bathroom.
Newly convinced of his own rights, he decided to quietly use the boy’s bathroom when he returned to school for his junior year. There was no fuss for seven months until February 2016, when a teacher notified administrators, and Whitaker was again told to use girls’ bathrooms or single-stall bathrooms in the office.
In response, Whitaker limited his liquid intake and tried not to use the bathroom at all while at school, which exacerbated his migraine headaches and other medical conditions, according to the complaint. But when he needed a bathroom, he used the boys’ room — and he continued to assert his right to do so as school officials insisted that he use the girls’ bathroom.
In April 2016, Whitaker asked for the district’s rationale for prohibiting him from using the boys’ facilities. An administrator said that Title IX, the federal law that prohibits discrimination on the basis of sex, does not protect transgender students’ access to bathrooms, according to the complaint. When Whitaker challenged the administrator to explain her understanding of Title IX, she refused. “I don’t think I’m going to give you any reasons,” she said, according to the complaint.
The following month, the Obama administration directed all of the nation’s public schools to accommodate transgender students by allowing them to use bathrooms that match their gender identity instead of their biological sex. LGBT advocates hailed the move as a critical protection for vulnerable youth, but it triggered a fierce backlash from politicians and parents who called it a federal overreach and an invasion of student privacy.
Twenty-one states are now challenging the Obama administration’s policy in two separate lawsuits, and school districts nationwide are wrestling with how to handle the divisive issue in their own communities.
One of the lawyers representing Whitaker is Joseph Wardenski, who previously was in the Obama administration’s Justice Department, where he worked on a landmark 2013 case in which the administration successfully pressed a California school district to allow a transgender student to use facilities that matched his gender identity.
Wardenski, who is now in private practice in Washington, said in a statement that Kenosha’s treatment of Whitaker amounted to a “campaign to segregate and humiliate” him.
Kenosha’s school board is currently contemplating policy revisions that would explicitly protect transgender students’ privacy and would prohibit bullying and harassment of transgender students, according to documents posted on the district’s website.
The proposed revisions for the school district — which serves more than 22,000 students -- also include a new policy on bathroom access. Whitaker’s lawyers say it doesn’t offer enough protection: It presumes that students will use restrooms that match their biological sex, and it says that students who feel uncomfortable doing so should contact school staff, who will decide how to proceed on a case-by-case basis.