Justices from the Seventh Circuit Court of Appeals, on March 29, heard an appeal from a Wisconsin school district that had been ordered to make accommodations for a transgender boy wishing to use the boys' washroom.
Ash Whitaker, in 2016, sued his Kenosha school after he was prevented from using the boys' washroom. A judge in September ordered an injunction allowing Whitaker to use the washroom he wished. The district appealed the injunction; the appeal was the subject of the March 29 hearing.
Chief Judge Diane Wood and Judges Ilana Rovner and Ann Williams heard the case.
Wood asked attorney Ron Statler, representing the Kenosha Unified School District, what evidence the district had that students would be harmed should Whitaker be allowed in the boys' locker room. Statler said, later in the hearing, that there had been only one public complaint about the matter, from a parent during a school board meeting.
Wood also noted that Whitaker would be subject to harm should he be forced to use the girls' locker room.
"We have to balance the harm," said Williams. "That's why it matters who's complaining."
Statler said that district policy was based on a simple idea, that the public accommodations should match the gender marker on a student's birth certificate. According to Wisconsin law, that marker can only be changed after there is proof of gender-reassignment surgery.
"So if young Whitaker had changed his birth certificate, we wouldn't even be here?" asked Rovner. Statler answered yes.
Whitaker's attorney, Joseph Wardenski, said that the district's policy only came into place as the case was being litigated, and that his client was given a litany of excuses as to why he was being denied access.
Wardenski also noted that a birth certificate wasn't completely irrefutable as evidence. Had Whitaker been born in a state where he could have more easily changed his certificate's gender-marker, or initially provided a U.S. passport, which the district accepted as identification, the school would have had to accept his stated gender.
Wardenski also noted that Whitaker was not prompted by specific threats or remarks about using the girls' washroom, but had been subjected to bullying related to other matters.
"He was legitimately afraid, based on his own experience and the experience of other transgender students, that he would be subjected to invasive questions," Wardenski said.
The judges will now deliberate on the appeal. The initial case is still in process in Wisconsin.
