Wisconsin Transgender Student Scores Victory In School Bathroom Case

A transgender high school student in Kenosha will be able to use the bathroom of his choice — at least temporarily — after U.S. District Court Judge Pamela Pepper granted a preliminary injunction Tuesday.

The ruling prohibits Kenosha Unified School District from attempting to keep Ash Whitaker out of boys’ bathrooms. The district had wanted him to either use bathrooms designated for girls or single-occupancy restrooms, options Whitaker’s attorney Joseph Wardenski argued leads to stigmatization.

In addition, the few single-stall bathrooms that exist are often times out of the way, Wardenski said.

Although he identifies as a boy, Whitaker’s birth certificate has him marked as a girl.

During a hearing that preceded the Tuesday ruling, Wardenski argued his client suffered from stress, anxiety and a diminished ability to concentrate because the district refuses to recognize his gender identity.

Whitaker, he said, tries to avoid using school bathrooms altogether, something that aggravates a medical condition requiring him to drink large amounts of water daily.

“There doesn’t seem to be any question that Ash has already suffered harm,” said Pepper in assessing the interests of the student against the district. To the contrary, Pepper indicated she sees little harm to the district in allowing Whitaker to use boys’ restrooms.

As for a potential public outcry, Pepper said, “They’re entitled to have strong views.”

Speaking to reporters afterward, the district’s attorney Ron Stadler said he plans to immediately file an appeal with the 7th Circuit Court of Appeals in Chicago, and will ask Pepper to stay her ruling.

In court Tuesday, Stadler argued the law doesn’t allow students to pick their own gender.

“There is no support in the law for that proposition,” Stadler said.

Stadler also argued Whitaker’s anxiety and inability to focus could be caused by issues other than bathroom usage.

Stadler also raised potential privacy concerns. But if Whitaker’s male classmates object to sharing a bathroom with Whitaker, they can leave and duck into another one, Pepper noted.

At the end of her ruling, Pepper acknowledged the U.S Supreme Court has weighed in to a limited extent on a comparable case, staying a ruling that would’ve given victory to a transgender student from Virginia. Pepper said the two-paragraph stay did not offer a clue on the justices’ thinking, and she issued her injunction based on the facts and legal arguments specific to the case in question.

In an email sent later Tuesday, Wardenski said he informed Whitaker and his mother of Tuesday’s ruling, and he said they were “thrilled.”

Stadler, meanwhile, predicted the school district will eventually prevail on appeal.