Kenosha student wins appeal to use boys bathroom

A transgender Kenosha teenager wins a federal appeal to use the boys bathroom.

In September, a judge rules that Ashton Whitaker, who attends Tremper High School and identifies as males, should be able to use that facility.

The Kenosha Unified School District appealed that decision, arguing concern for other students.

On Tuesday, a judge said that any harms to other students are speculative while harms to Whitaker, including suicidal thoughts and medical issues, are well documented.

Kenosha Unified issued the following statement via Ronald S. Stadler of Mallery & Zimmerman, S.C.:

"As counsel for the Kenosha Unified School District, we are disappointed with the Court of Appeals decision. Although the Court of Appeals acknowledged that other courts have concluded that being transgender is not protected under Title IX, the Seventh Circuit reached a contrary conclusion, noting "We disagree." The court expanded the"sex-stereotyping" theory from a recognition that one cannot be discriminated against because of gender non-conformity, such as not wearing clothing typically associated with the individual's sex, and instead created a new right extending discrimination because of sex to now include the status of being transgender.

The court also rejected the District's position that there is a rational basis for requiring men to use men's rooms and women to use women's rooms.

Instead, the Court believes there is no harm in allowing men and women to use the same restroom.

The Court's ruling merely returns the case to the trial court to continue Plaintiff's claim for damages. Because of these claims, the District will analyze whether it will ask the full panel of judges to review the case, whether to consider an appeal to the United States Supreme Court or whether to defend the case in the trial court and seek appellate review at a later date."