Victory for Trans Rights at Federal Appeals Court

Ash Whitaker
Ash Whitaker

In what appears to be a major victory for the rights of transgender students, a federal appeals court today upheld a Wisconsin trans boy’s right to use the boys’ restroom at his school.

A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit kept in place a federal district court’s preliminary injunction that prevented Wisconsin’s Kenosha Unified School District #1 from enforcing its anti-trans restroom policy while student Ash Carter’s case proceeds, The Washington Post reports.

Carter had sued the district last summer, arguing that the district’s policy requiring him to use the girls’ restroom or a gender-neutral located in the school office one violated his civil rights. These were “options that Whitaker said set him apart from his peers and stigmatized him because of his gender identity,” the Post reports.

The appeals court’s decision did not rely on the Obama administration’s 2016 guidelines on treatment of trans students — guidelines that the Trump administration has now rescinded. The guidelines advised school districts to allow trans students to use the restrooms and other facilities of their choice, and to use the students’ preferred names and pronouns, in order to avoid violating antidiscrimination law. Under President Obama, the Departments of Education and Justice had held that Title IX of the Education Amendments of 1972, in banning sex discrimination in education, by definition banned discrimination based on gender identity, so officials with those departments crafted the guidelines accordingly.

The Seventh Circuit agreed that both Title IX and the U.S. Constitution ban gender identity discrimination — the first federal appeals court to do so — and that Carter was likely to succeed in his lawsuit on that basis. Obama administration officials who helped develop the guidelines said the court’s decision showed that they were interpreting Title IX accurately and that discrimination against trans students was unlawful, with or without the guidelines. “The guidance didn’t make new law, which was our point,” Catherine Lhamon, who helped put together the guidance at the Education Department, told the Post.

Another federal appeals court, the Fourth Circuit, had ruled in favor of Virginia trans boy Gavin Grimm’s right to use the boys’ restroom at his school, but it had based its decision largely on the Obama-era guidelines. His school district, in Gloucester County, appealed the decision to the U.S. Supreme Court, which was going to take it up until the guidelines were revoked. When that happened, the high court sent the case back to the Fourth Circuit for reconsideration.

The Seventh Circuit’s decision is precedent-setting for the three states it covers: Wisconsin, Illinois, and Indiana. It also may influence other courts, legal experts said.

“Other courts, as they will be grappling with these same issues, will hopefully find the Seventh Circuit’s decision very persuasive as they look to answer these questions elsewhere,” lawyer Joseph Wardenski, who represents Whitaker along with the Transgender Law Center, told the Post.

“This is a great victory for transgender students,” added Kris Hayashi, the Transgender Law Center’s executive director, in a press release. “The battleground may be bathrooms, but the real issue is fairness and transgender people’s ability to go to school, to work, and simply to exist in public spaces. This win makes that more possible for more people.”

Whitaker will graduate from high school this weekend, so the decision’s impact on him is limited, but he still saw it as an important victory. “I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” he said in the Transgender Law Center release. “After facing daily humiliation at school last year from being threatened with discipline and being constantly monitored by school staff just to use the bathroom, the district court’s injunction in September allowed me to be a typical senior in high school and to focus on my classes, after-school activities, applying to college, and building lasting friendships.”

The school district is considering whether to appeal the decision to the Supreme Court or the full Seventh Circuit, and whether to proceed with the case in district court, a lawyer for the Kenosha schools told the Post.

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