Wisconsin District Asks Supreme Court to Resolve Transgender Restroom Issue

By Mark Walsh — August 28, 2017 2 min read
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A Wisconsin school district is asking the U.S. Supreme Court to decide whether school policies that require transgender students to use the restrooms corresponding to their biological sex violate Title IX or the U.S. Constitution.

“This is a matter of national importance,” says the appeal filed Aug. 25 by the Kenosha Unified School District. “School districts, students, and parents across the country need guidance on this issue given the conflicting decisions by various courts, guidance which has been issued and withdrawn by the [U.S.] Department of Education, and the lack of any other definitive answers.”

The district is appealing a May 30 decision by the U.S. Court of Appeals for the 7th Circuit, in Chicago, that upheld an injunction requiring school officials to allow a transgender high school student to use the boys restroom.

The appeals court said the district’s policy likely violated 17-year-old Ashton Whitaker’s rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s equal-protection clause.

Whitaker, who graduated from Tremper High School in Kenosha in June, was born a girl but began identifying as a boy in 2013. School administrators refused his requests to use the boys restroom.

In its appeal in Kenosha Unified School District v. Whitaker, the district says, “This case is a clean vehicle for the court to clarify whether requiring boys and girls to use school bathrooms that correspond with their biological sex, rather than their gender identity, is sex-based discrimination under Title IX and whether this classification is entitled to heightened scrutiny in an equal-protection analysis.”

The appeal doesn’t mention that Whitaker has graduated, but the school district apparently concedes that the student’s lawsuit sought monetary damages as well as other forms of relief and thus is likely not moot.

“This case presents an opportunity for this court to make one ruling that will definitively settle this issue for all similarly situated parties across the country,” the district’s appeal says.

The Supreme Court granted review of a case last term, in Gloucester County School Board v. G.G., involving a transgender student’s fight with a Virginia school district. But it sent the case back to a federal appeals court after President Donald Trump’s administration rescinded guidance issued by President Barack Obama’s administration that had interpreted Title IX as requiring schools to allow transgender students to use the restrooms that correspond to their gender identity.

The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., has, in turn, sent the case involving Gavin Grimm back to a federal district court to weigh whether Grimm’s graduation from high school had made his case moot.

A version of this news article first appeared in The School Law Blog.