Trans student’s victory in federal court gives LGBTQ rights advocates renewed hope

Ash and Melissa Whitaker

By David Sheridan

In order to use the boy’s bathroom in his high school—the bathroom which conforms with his gender identity—Ash Whitaker had to take the Kenosha Unified School District to court.

“I so admire the young people like Ash Whitaker who have the courage to stand up and fight for their rights—I feed off their courage,” says Bonnie Augusta, a retired teacher and longtime champion for LGBTQ students in Wisconsin.

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In a unanimous three-judge decision, the U.S. Court of Appeals for the 7th Circuit affirmed a lower court’s ruling that granted Ash Whitaker permission to use the boy’s bathroom in his Kenosha, Wisconsin high school. “I am thrilled that Seventh Circuit recognized my right to be treated as the boy that I am at school,” says 17-year-old Ash Whitaker.

“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,” Ash Whitaker says, “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,”

Ash Whitaker’s mom, Melissa adds: “Transgender people everywhere just want to be recognized and understood for who they are, No parents, no mother, no father, no family members ever wants to see their child go through discrimination.”

Coming on the heels of Attorney General Jeff Sessions rescinding the Obama administration’s guidance on protecting students against gender identity discrimination, the Court of Appeals’ ruling gave LGBTQ rights advocates across the nation renewed hope.

“I think it most significant that the federal court based its decision not just on Title IX of the Education Amendments of 1972, but also the Equal Protection clause of the 14th Amendment of the Constitution,” said Augusta. “Now a transgender student has a constitutional right to be treated in accordance with the student’s gender identity.”

Frank Burger, co-chair of NEA’s GLBT Caucus, agrees with Augusta, and also points out that the Court of Appeals debunked the myth that letting trans people use the bathroom of their gender identity will harm others.

“The harms identified by the school district are all speculative and based upon conjecture, whereas the harms to Ash are well-documented and supported by the record,” wrote Judge Ann Claire Williams.

“I’d be celebrating even more,” says Burger, “but we still have a lot of work to do—people fear the unknown, and we need to educate them.”

Kenosha high school librarian Susy Siel sees the court’s decision giving educators in the district an opportunity to learn more about how creating a safe environment for all students includes respecting students’ gender identity. And Siel proudly notes that on the Battle of the Books reading program list for Wisconsin schools is I am Jazz, the book by transgender teen trailblazer Jazz Jennings.

Reader Comments

  1. It is SO sickeningly SAD and PATHETIC that moderators censor as they do!!!

    No WONDER that there are less than 10 people who commented on this article! I wonder if many more take the time to read it as a result! I certainly won’t waste my time trying to start a discussion with any close minded moderator!

    Multiple times have I taken the time to comment only to have said not posted at all! Neither are my comments inflammatory nor hateful, but are simply in non-concurrence with the slant that the NEA is!

    Shame on US if we, with differing opinions, cannot have a DISCUSSION about such things.

    And a DOUBLE dose of shame and official reprimand to those who abuse their position to stifle discussion, civil discourse and understanding of each other!!!

    As wrong as it is, it speaks loudly to the caliber of athlete who must cheat to win ~ and quite a complement to the skill of their opponent. Similarly, it speaks to the character of one who abuses power and censors opinions which differ than their own.
    ~ as has been demonstrated

    Does not abusive censorship prove one’s close minded ignorance? That they have no leg to stand on? That their only rebuttal is to yell or protest those willing to discuss???

    SHAME ON ALL OF US if we sit by and allow such, when others burry their head in the sand, refusing to engage in civil discourse!!!

    1. So, here it goes again…
      First of all, I am so for the equal rights of all.
      But isn’t the real issue here a debate over ……is “equal” always “right” and is “right” always “equal”???
      At what point is “equal access to a bathroom” more “right” over and above ones’ desire for “equal privacy while in a bathroom.”  Using feminine products right beside some guy taking a “power dump” just doesn’t seem too private to me.

      Does that make me a prude?

      If you can walk through a large public shower using it as free as an eagle, without a single reservation, all the power to you!  But for those (pre)pubescent kids, ALL awkward with their own changing bodies, how much more awkward for them if with both sexes (genders …. all 3, 4 5 or ???? of them) were in there as well?  
      Should we (either as a parent or teacher) be ok with adults (any and all parent or teachers) using the same changing room and showers as our children or young adolescents … our sons and daughters?
      As educators, don’t we have … desire and are expected to use… separate staff from the separate student bathrooms?  Regardless the reason, I for one, especially do!  If not, don’t we open ourselves to possible, (and quite likely) litigation believing that you were “looking” at them
      No matter ANYONE’S POLITICAL slant, shouldn’t we be able to ALL agree with Thomas Jefferson, “There is nothing more unequal, than equal treatment of unequal people”????

  2. Children would not do this on a whim. Parents wouldn’t go along with it on a whim. Being born CIS means having an “easy” life. Struggling each day to have the world see you for who you know you are inside, despite the opposite sex organ between your legs, is NOT something a child or teen would choose. Traumatizing them by subjecting them to discrimination in one location where they deserve to feel safe is not helping them to develop into well-rounded citizens. This decision is important as it supports transgender children and young adults. It allows them to live their lives & learn in a nurturing environment rather than fear each day they attend school.

  3. Wanting something does not make it true.
    If wishes were horses…
    The other students also have rights. This seems to be totally ignored in this matter. If you are female use one restroom, if a male use the other. A court order does not change the factual nature of this.

  4. The transgender issue with students, or I should call them what they are, children, has become quite absurd. We all go through some sexual identity crisis as we mature into adults, it’s normal. For a child to declare publicly that they are transgender and feel that they have to use the rest room of the sex that they are not physically seems rather silly and indulgent. Most of us vary quite a bit from the stereotypical male and female and may feel uncomfortable at times as children, teenagers, and even into early
    adulthood. It is important to accept yourself as you are. It seems like the declarations of people under 18 claiming to be transgender is becoming more common every year. How much of this is due to popular trends such as tattooing and facial piercings, well who knows. However, the significant adults in these young persons lives should set some limits as to what age it would be appropriate to indulge in piercings, hair dying, tattoos, declarations of transgender, taking drugs, sex change surgery, etc. Adults who allow and often encourage juveniles to make life altering decisions in such matters as sexual identity or even seemingly trivial matters such as dying a child’s hair need to understand their own motivations, and as adults set limits such as “when you are 18 you can do whatever you want, but not until then”. By then, quite often the desire that was so strong as a immature youth will have faded away.

    1. I am very confused as to how hair dying and tattoos play into gender identity. I think those are two different things. I do agree that children are allowed to express themselves on a more extreme level these days. Dress codes, other respectful behavior, appropriate attitudes toward adults and taking responsibility for ones actions all seem to be “old school” and common decency is often at stake. I don’t think this situation is part of the decline of morals, but I do also question why the number of young adults declaring to be the opposite gender of their birth sex is so rampantly on the rise and it is likely the result of my lack of knowledge on the issue but even young people taking hormone blockers to actively change their bodies development concerns me. How do doctors/parents know if it’s just a phase and isn’t there an overall affect one a child’s development and health in doing such a thing?

    2. Your remarks show thought and insight, but lack empathy.

      These reflections are more about adults “forming” children’s and young people’s identities rather than nurturing their development. The former is fear-based, the latter is relationship-based.

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