An appeals court took a step towards affirming transgender rights on Tuesday with a preliminary injunction in favor of a transgender teenager’s right to use the school bathrooms that align with his gender identity.
Ash Whitaker, a 17-year-old transgender boy and a senior at George Nelson Tremper High School in Wisconsin, sued his school after being denied access to the bathroom that matches his gender identity.
His school, which is part of the Kenosha Unified School District, argued “his mere presence would invade the privacy rights of his male classmates,” according to the lawsuit.
The Seventh Circuit Appeals Court ruled there was no evidence to back up the school’s claims, that refusing Whitaker access to boys’ bathrooms and changing facilities did measurable damage to him, and that his complaint is likely to succeed on merit.
“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,” Judge Ann Claire Williams wrote in the decision.
Some of those harms were laid out in the lawsuit (emphasis added):
Restricting his water intake was problematic for Ash, who has been diagnosed with vasovagal syncope. This condition renders Ash more susceptible to fainting and/or seizures if dehydrated. To avoid triggering the condition, Ash’s physicians have advised him to drink six to seven bottles of water and a bottle of Gatorade daily. Because Ash restricted his water intake to ensure that he did not have to utilize the restroom at school, he suffered from symptoms of his vasovagal syncope, including fainting and dizziness. He also suffered from stress related migraines, depression, and anxiety because of the policy’s impact on his transition and what he perceived to be the impossible choice between living as a boy or using the restroom. He even began to contemplate suicide.
The three-judge panel indicated that both Title IX and the Equal Protection Clause of the Constitution implicitly protect transgender students from discrimination. In this case, that means the school cannot bar Whitaker from the boys’ bathroom and changing rooms.
In the ruling, the judges cited an amicus brief filed by Lambda Legal on behalf of school administrators from 21 states and the District of Columbia who said they had implemented trans-inclusive policies at their schools without negative consequences:
These administrators uniformly agree that the frequently‐raised and hypothetical concerns about a policy that permits a student to utilize a bathroom consistent with his or her gender identity have simply not materialized. Rather, in their combined experience, all students’ needs are best served when students are treated equally.
The decision is a step forward, however incremental, for LGBTQ equality, even as the Trump administration continues to roll back federal guidances to protect trans students.