Court Says Female Who Identifies as Male Can Use Wisconsin School's Boys Restroom

Yale is among a growing number of universities changing policies regarding transgender rights, changes bathroom policies in May 2016.
Yale is among a growing number of universities changing policies regarding transgender rights, changes bathroom policies in May 2016. | (Photo: Reuters)

A biological female student who identifies as a man can use the boys' restroom at a Wisconsin school, ruled a three-judge panel of the Seventh Circuit Court of Appeals.

In a unanimous decision Tuesday, the panel decided that the Kenosha Unified School District violated Ashton Whitaker's rights when they required the student to use either the girls' restroom or a gender neutral facility on campus.

Authored by Circuit Judge Ann Claire Williams, the majority affirmed a lower ruling against the school district and argued that Whitaker could claim discrimination under Title IX's ban on sex discrimination.

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"A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX," wrote Williams.

"The School District's policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act."

The panel also rejected the School District's claim that Whitaker's usage of the boys' restroom violated other students' privacy rights, labeling this argument "sheer conjecture and abstraction."

"For nearly six months, Ash used the boys' bathroom while at school and school‐sponsored events without incident or complaint from another student," continued the decision.

"In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District's eyes."

In recent years, there have been several controversies over public schools and how they accommodate transgender students.

Soon after taking office, President Donald Trump rescinded an Obama era directive for public schools demanding that they allow transgender students to use the bathrooms and locker rooms of their chosen gender identity.

Many social conservatives celebrated this reversal, with Southern Baptist Convention's Ethics & Religious Liberty Commission President Russell Moore stating in February that he was "very glad to see the Trump administration revoke these guidelines."

"Children are not pawns of the state to be used to advance the latest fashionable 'right side of history' cause," said Moore in a statement given to The Christian Post earlier this year.

"Christians must continue to insist that the worldview of the sexual revolution harms men and women and advocate for the inherent dignity of all."

Abraham Hamilton III of the American Family Association told CP that he considered the Seventh Circuit's decision as another example of "judicial tyranny."

"If you expand the clear definition of the word sex and education amendments of 1972's Title IX to include the concept of gender is to accomplish an extra-congressional amendment to the statute without actually going to Congress," said Hamilton, adding that this was "the exact opposite of what the judiciary is supposed to do."

Hamilton also pointed out to CP that he found it interesting that while he was not part of the panel, the Seventh Circuit includes on its bench Judge Richard Posner, who in 2016 garnered headlines for claiming that the U.S. Constitution should not be applied to modern America.

"He has articulated that he operates under the view that the Constitution is what the judges say it is and this opinion is further evidence of that view being enacted," noted Hamilton.

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