Appeals Court Unanimously Rules Wisconsin School District Must Allow Girl in Boys’ Restroom

MILWAUKEE, Wisc. — The Seventh Circuit Court of Appeals has unanimously ruled that a Wisconsin school district must allow a girl who identifies as a boy to use the boys’ restroom, concluding that the prohibition would likely cause “irreparable harm.”

“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates,” Judge Ann Claire Williams, nominated to the bench by then-President Bill Clinton, wrote on behalf of the three-judge, all-female panel.

“Further, if the school district’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre‐pubescent and post‐pubescent children who do not look alike anatomically,” she said. “But the school district has not drawn this line.”

Judge Diane Wood, also nominated by Bill Clinton, and Ilana Rovner, nominated to the bench by then-President George H.W. Bush, joined Williams in the decision.

As previously reported, Ashton Whitaker, 16, sued the Kenosha Unified School District No. 1 and Superintendent Sue Savaglio-Jarvis in July for being denied use of the boys’ restroom and for continuing to be referred to by her feminine name. Her attorneys contended the acts violate Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the U.S. Constitution.

Whitaker’s complaint, filed by the Transgender Law Center and Relman, Dane and Colfax PLLC, alleged that officials at Tremper High School told her that she must either use the girls’ restroom or a single occupancy restroom in the school office.

The following year, she surreptitiously began using the boys’ restroom, but was spotted by a teacher months later and again instructed to use the girls’ restroom or the lavatory in the office.

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Whitaker then sought to avoid using the restroom at all at school, but said that limiting her fluids caused medical issues. She continued, however, to use the boys’ restroom at school in defiance of the district policy.

In July, she filed suit against the district to gain entry into her preferred restroom, citing the suffrage of post-traumatic stress disorder from her gender dysphoria and the school’s requirements. U.S. District Judge Pamela Pepper, nominated to the bench by then-President Barack Obama, ruled in her favor.

“There’s no question that Ash has already suffered harm and has had physical repercussions from the policy, as well as emotional repercussions,” she wrote.

The district appealed, and on Wednesday, the Seventh Circuit affirmed the decision, contending that boys’ restrooms have stalls and that all Whitaker needs to do is close the door on her stall.

“Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall,” the three female judges wrote. “Nothing in the record suggests that the bathrooms at Tremper High School are particularly susceptible to an intrusion upon an individual’s privacy.”

The court also opined that because no students had complained during the six months Whitaker had used the men’s restroom, no harms had been proven.

Reports note that as Whitaker is scheduled to graduate this week, the ruling will have little impact on her at this point. It might, however, significantly affect future cases both in the Seventh Circuit and across the country.

The Kenosha Unified School District says that it is disappointed in the decision. As previously reported, Whitaker had previously fought her school district for prohibiting her from running for prom king. Officials relented in the matter.

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