You Just Cannot Make This Up! Judges Have Rocks in Their Heads; Wisconsin Federal Court Sides With Transgenders as Protected Class
Leftists in Federal Courts Undermine Constitution,
Federal Court of Appeals Sides With Transgender High School Student in Wisconsin,
Rules Unanimously in Favor of 17-year-old in Bathroom Case
June 2, 2017
May 31st Wall Street Journal
A Wisconsin high school must allow a student to use the bathroom that matches his gender identity while his lawsuit moves forward, a federal appeals court said Tuesday in a broad ruling that recognized federal protections for transgender children.
Just days before the end of the school year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled unanimously in favor of 17-year-old Ashton “Ash” Whitaker, a high school senior who sued his school district to overturn a policy that forbids him from using the boy’s bathroom because he was born female.
A federal trial court suspended the Kenosha Unified School District’s policy in September, pending the outcome of the lawsuit. The Seventh Circuit, which hears cases from Illinois, Indiana and Wisconsin, rejected the school district’s appeal, and held, for the first time, that transgender students are protected by the U.S. Constitution’s guarantee of equal protection and by a federal law prohibiting sex discrimination in educational programs that receive federal assistance.
Lawyers for the school district argued the bathroom policy protected the privacy rights of 22,160 students in the district, outweighing potential harms to Ash Whitaker, who has been diagnosed with gender dysphoria and began receiving hormone replacement therapy last year.
“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 performing their bodily functions,” wrote Judge Ann Claire Williams. “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.”
Ronald Stadler, a lawyer for the school district, said the court created a new right “extending discrimination because of sex to now include the status of being transgender.”
“The Court believes there is no harm in allowing men and women to use the same restroom,” he said.
Federal courts disagree over whether transgender people can challenge bathroom policies under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs, and other federal laws. At least one other federal appeals court and other federal trial courts have held they can’t. The Supreme Court may ultimately decide the question.
“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 Judge Williams, an appointee of President Bill Clinton.
She was joined by Chief Judge Diane Wood, another Clinton appointee, and Judge Ilana Rovner, an appointee of President George H.W. Bush.
A federal appeals court in Virginia issued a narrower ruling last year in favor of a transgender student who sued his school district for banning him from the boy’s bathroom.
The U.S. Supreme Court had agreed to hear the case but returned it to the Fourth U.S. Circuit Court of Appeals in Richmond earlier this year, after the Trump administration revoked Obama-era guidance that directed schools to allow students to use bathrooms matching their gender identity.
The ruling comes months after North Carolina lawmakers dialed back a year-old law known as House Bill 2 that required transgender people to use the public bathroom associated with the sex designated on a birth-certificate, an attempt to reverse a tide of businesses and sports events leaving the state because of a policy they considered discriminatory.
Mr. Whitaker used the boys’ bathroom at Tremper High School in Kenosha, a city of about 100,000 on the southwestern shore of Lake Michigan, for about six months beginning in his junior year, until a teacher saw him washing his hands at the sink and reported him, according to court documents.
The school district barred him from using the boys’ restroom, giving him access instead to two single, gender-neutral bathrooms on the opposite side of campus from where his classes were held.
The Seventh Circuit noted that the school district provided no evidence that any student complained about his presence in the boys’ bathroom or that he caused an invasion of privacy.
“I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” Ash Whitaker said in a statement emailed by his lawyers.
The school district could ask the Seventh Circuit for a rehearing or petition the U.S. Supreme Court. Otherwise, the case would return to the lower court for more proceedings. Mr. Stadler said the school district was considering its legal options.
Article appeared in the 5/31/17 Wall Street Journal
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