This Bad-Ass Transgender Student Took His Transphobic School to Court—and Won

Ash Whitaker and his mother.

 

By Mark Joseph Stern

OUTWARD on SLATE

Sept. 21 2016 

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 Ash Whitaker is a high-school student who gets good grades, plays in the orchestra, and hangs out with his friends. He is also a bad-ass. After Whitaker came out as transgender, his school in Kenosha, Wisconsin, launched a campaign of discrimination against him. The school forced him to use the girl’s bathroom, addressed him with female pronouns, and referred to him by his (female) birth name. School officials even proposed branding Whitaker with a green wristband to signify his transgender status, requiring him to wear the band throughout the school day so instructors could easily monitor his restroom usage.

Whitaker, who is medically transitioning and is in the process of legally changing his gender, was devastated by this mistreatment. He was even more concerned when school officials threatened him with disciplinary proceedings for using the bathroom at school—a mark on his record might hurt his college chances. So Whitaker did what any overachieving all-American kid would do and sued his school, alleging that it violated his rights under Title IX and the Equal Protection Clause. The federal government currently interprets Title IX to bar anti-trans discrimination in education, requiring federally funded schools to let trans students use the bathroom that aligns with their gender identity. But when Whitaker patiently explained this fact to a representative from the Kenosha Unified School District, she denied it. Whitaker then asked her to explain why she felt the school was not violating Title IX.

“I don’t think I’m going to give you any reasons,” she responded, according to Whitaker’s deposition.

What else could Whitaker do but take his school to court? With the help of the Transgender Law Center and the law firm Relman, Dane & Colfax, Whitaker asserted his rights in federal court. Whitaker explained that, while he used to love school, the discrimination he faced as a transgender student was overwhelming. He dreaded getting out of bed in the morning and faced medical problems from trying to avoid using the bathroom throughout the school day. He felt “harassed, discriminated against, demeaned, and humiliated” by his school, even “targeted for an assault” due to the “attention and scrutiny” the school thrust upon him. (Whitaker had used the boy’s bathroom for many months after transitioning without incident; problems only arose when school administrators noticed and decided to exile him from the facilities.) In court, Whitaker urged the judge to protect his federal civil rights against the school’s invidious discrimination.

Transgender Law Center

On Tuesday, he won his first major victory. U.S. District Judge Pamela Pepper issued an emphatic preliminary injunction from the bench barring the school from discriminating against Whitaker by forcing him to use the girl’s bathroom. Pepper found that Whitaker would suffer “irreparable harm” if the school continued to mistreat him, citing the anxiety, depression, and humiliation he experienced under the current anti-trans policies. She concluded that these harms are real and outweigh the harms, if any, that a trans-friendly policy would inflict on the school district. (The district has an interest in setting its own policies, Pepper acknowledged—but these rules can’t trump a student’s rights under federal law.)

Pepper then held that allowing Whitaker to use the restroom consistent with his gender identity does not harm the public interest and that Whitaker has a significant chance of success on the merits of his case moving forward. Taken together, these factors compelled the grant of a preliminary injunction. The litigation will continue and Pepper will hear more arguments on Whitaker’s Title IX and Equal Protection claims before rendering a final verdict.

Shortly after Pepper’s decision came down, I called up Joseph Wardenski, a senior litigation associate at Relman, Dane & Colfax, who is representing Whitaker. He had recently spoken with Whitaker’s mom and told me she was “thrilled,” as is her son. “I think they were still processing the decision,” Wardenski said, “but they were both very excited and heartened by the judge’s decision.” After all, the law is now clear: “Starting Wednesday, Ash can use the boy’s restrooms without fear of reprisal or discrimination by the school district.”

The school district is likely readying an appeal, meaning Whitaker’s fight is far from over. But the high-school senior seems ready for the battle ahead. He’s already won an important moral victory. Throughout his deposition, Whitaker expressed a reasonable fear that bullies would target him for being “singled out” by the school. But the worst bullies in this case appear to be the petty, callous school officials who relentlessly persecuted Whitaker out of pure prejudice. These small-minded transphobes made Whitaker’s school experience a living hell because their own irrational animus prevents them from seeing his humanity. And Whitaker’s humanity, his right to be treated like any other kid, is what Pepper affirmed most vehemently in her forceful, principled ruling.

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