A U.S. district court judge in Milwaukee issued a temporary order Tuesday requiring the Kenosha Unified School District to let Ashton Whitaker use the boys’ bathroom.
That order may very well wind up at the Supreme Court, which has stayed a similar court order that allowed Gavin Grimm, another transgender boy, to use the boys’ bathroom at Gloucester High School in Virginia until it decides whether to take his case. The Kenosha Unified School District is expected to appeal in Whitaker’s case.
There is now a significant number of similar cases around the country on an issue that the Supreme Court has never decided: Do the laws that bar discrimination on the basis of biological sex necessarily apply to gender identity?
As applied in schools and colleges, the question revolves around the sex discrimination provision of Title IX of the Education Amendments of 1972.
The U.S. Department of Education issued a “Dear Colleague” notice to all educational institutions receiving federal funds in May that said, among other things, that schools “must allow transgender students access” to bathroom and locker room facilities “consistent with their gender identity,” as opposed to whatever gender is specified on their original birth certificates.
That policy, which does not have the force of law, was stopped in its tracks in August by a temporary order issued by a federal judge in Texas, in response to a challenge from Texas and a dozen other states.
They argued — and the judge agreed that they had a good chance of prevailing — that the Obama administration, in the absence of either an act of Congress or a formal regulatory proceeding, lacked the legal authority to impose its own interpretation of Title IX.
In a third case on the same subject, the administration sued the state of North Carolina in May, challenging HB 2, a law that bans transgender people from using bathrooms that don’t match the gender on their birth certificates and, at the same time, barred cities and counties in the state from passing laws to the contrary, as had the city of Charlotte.
North Carolina’s refusal to budge on HB 2 has produced an economically damaging boycott against the state, with the NCAA announcing earlier this month that it will relocate all seven championship events scheduled to take place in North Carolina during the 2016-17 season, including the first and second rounds of the lucrative Division I men’s basketball tournament.
Whitaker, 17, has said he was inspired by Virginia’s Gavin Grimm to file suit and, with legal support from the Transgender Law Center, he did.
He and his lawyers argued that Kenosha schools forcing him to use the female facilities, or a facility separate from the others used by students, violates both Title IX and the Equal Protection Clause of the Constitution.
Kenosha countered with the same argument made by Texas and the other states: that “the prohibition against sex discrimination” in Title IX “does not encompass being transgender.”
“There’s no question that Ash has already suffered harm and has had physical repercussions from the policy as well as emotional repercussions,” U.S. District Judge Pamela Pepper said as she issued the order, according to the Milwaukee Journal Sentinel.
“It’s awful going to school every day with the constant stress and stigma from being segregated from my peers and from administrators watching my every move just because of who I am,” Whitaker, who told his parents he was a transgender boy in the eighth grade, said in a statement issued through the Transgender Law Center.
“I’m so relieved I’ll be able to just go to class, apply to college, and graduate without worrying if I’ll get in trouble for using the restroom. For the first time this year, I feel like I can actually make it through my senior year of high school just like any other boy in my class,” he said.