Federal Court Grants Biological Female The Right To Use Boys’ High School Bathrooms

Ash Whitaker YouTube screenshot/ABC News

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On Tuesday, the U.S. Court of Appeals for the Seventh Circuit ordered a taxpayer-funded school district in Wisconsin to allow a female transgender student who dresses like a boy and otherwise identifies as male to use the boys’ bathrooms and locker rooms on school premises.

Judge Ann Claire Williams, a Bill Clinton appointee, delivered a three-judge panel’s unanimous ruling in the case, Whitaker v. Kenosha Unified School District.

The ruling upholds a preliminary injunction — issued in September 2016 — allowing Ash Whitaker, a 17-year-old female student at Tremper High School in Kenosha, to use the boys’ bathrooms and other facilities for the remainder of her senior year.

Williams’s appellate opinion notes that Whitaker’s birth certificate designates her as female. However, the court opinion ignores Whitaker’s biological status because Whitaker “does not identify as” female.

The appeals court proclaims that “it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex.”

Whitaker was in junior high school when she decided “to openly identify as a boy,” the court explains. She “began to wear more masculine clothing and began to use the name Ashton and male pronouns.”

She went to a therapist who diagnosed her with a condition called gender dysphoria. Then, last year, she started hormone replacement therapy at a children’s hospital in Milwaukee.

Whitaker’s attorneys successfully argued that she would not draw attention to herself if she used boys’ bathrooms at the public high school. Instead, the attorneys said, Whitaker would be the focus on unwanted attention if she used the gender-neutral bathroom in the school’s office, as school officials at Tremper High had asked her to do.

As a junior, Whitaker “exclusively used the boys’ restrooms at school without incident.” Then, in February 2016, a teacher spotted her washing her hands in a boys’ bathroom and alerted administrators.

The appellate opinion lauds Whitaker as an excellent student who is involved in several extracurricular activities including theater and tennis. “When not in oschool [sic] or participating in these activities,” the Clinton appointee writes, “Ash works part-time as an accounting assistant in a medical office.”

Despite her status as an excellent student in the top 5 percent of her class, Whitaker said her inability to use the boys’ bathroom was causing her educational harm. There was also emotional harm, she said.

In addition, Whitaker claims to have a medical condition called vasovagal syncope, which makes her prone to fainting spells or seizures if she becomes dehydrated. This medical condition relates to her use of the boys’ bathroom, she says, because she has tried to limit her liquid intake to avoid using the gender-neutral bathroom.

The Seventh Circuit observed still other “negative actions” that Whitaker has endured. People used female pronouns to refer to her. She had been banned from running for prom king. And she had to share rooms with female students on school-related trips.

The court slapped down the school district’s argument that males should use bathrooms designated for males and females should use bathrooms designated for females. Such a view is “too narrow,” the court said.

Whitaker “has a medically diagnosed and documented condition” — gender dysphoria. As such, the judges reasoned, she must live “in accordance” with her “gender identity.”

The court held that Whitaker is likely to prevail on her Title IX claim that she is being “sex-stereotyped” as a girl because of her biological status as a female.

Title IX is a comprehensive 1972 federal law that prohibits federally-funded entities from discriminating on the basis of biological sex.

The trio of judges also suggested that Whitaker is likely to prevail on an additional claim under the Equal Protection Clause which alleges that the school is treating her differently by not allowing her to use boys’ bathrooms.

The court did note that parents and several residents of Kenosha have complained about Whitaker’s use of boys’ bathrooms but said that the school district “has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents.” Any harm to the male students who must share bathrooms and other facilities with Whitaker is “speculative and based upon conjecture,” the court said.

The school’s decision to ban Whitaker from boys’ bathrooms because she is a girl “ignores the practical reality of how” Whitaker “uses the bathroom: by entering a stall and closing the door,” the court concluded.

Transgender enthusiasts say they are elated by the Seventh Circuit’s decision.

“Today the Seventh Circuit Court of Appeals issued a groundbreaking ruling in favor of Ash Whitaker,” the Transgender Law Center said in a statement sent to The Daily Caller.

“I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” Whitaker said, according to the statement.

Whitaker said she faced “daily humiliation at school last year from being threatened with discipline” for using the boys’ bathroom.

“As I look forward to college next year, I hope my case will help other transgender students in Kenosha and elsewhere to just be treated the same as everyone else without facing discrimination and harassment from school administrators,” she said.

Joseph Wardenski, an attorney who represents Whitaker, praised the court for recognizing discrimination against transgender students.

“It has been a privilege to represent this courageous young man as he stands up for his rights and the rights of other transgender students,” Wardenski said.

The Transgender Law Center submits that Tuesday’s decision is first time a federal appellate court has ruled “conclusively that a transgender student has the right to be treated in accordance with the student’s gender identity at school under both Title IX and the Constitution.”

The Seventh Circuit Court of Appeals comprises appeals for federal trial courts in Wisconsin, Illinois, and Indiana.

In February, the Department of Justice and the Department of Education jointly issued administrative guidance revoking a vague Obama administration order forcing taxpayer-funded schools to allow transgender students to use the bathrooms and locker rooms of their choice. (RELATED: Trump Revokes Obama’s Public School Transgender Bathroom Free-For-All)

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