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Wisconsin Transgender Teen Wins Right to Use Boys' Bathroom

By George Khoury, Esq. | Last updated on

A Seventh Circuit decision, issued on Tuesday, upheld the lower federal court's preliminary order to allow a transgender teen to use the bathroom that corresponds with his gender identity. The Wisconsin federal court ruled last year that Ashton "Ash" Whitaker could use the boys' restroom, and the school could not prevent or discipline him in any way for doing so.

On appeal, the court sided with Ash on nearly every single point, and even ruled that the case looked like a winner for Ash. The preliminary order allowing Ash to use the bathroom is known as a preliminary injunction. Courts do not grant these unless the party seeking it can immediately prove that they are going to win their case, and if the court doesn't issue the order, irreparable harm/damage will occur.

Fighting for Equal Rights

While society slowly begins to appreciate that arbitrary discrimination is wrong, some groups unfortunately still have to fight to make their cases in the court of public opinion and in courts of law. For many transgender individuals, advocates, and allies, the Seventh Circuit opinion will be significant for more than just the outcome. Notably, the court's ruling is directly in line with their recent decision finding Title VII extends to protect LGBT employees.

Justice Ann Williams' decision contains many choice quotes explaining that transgender individuals are not only entitled to protection under Title VII, but also Title IX. Additionally, the opinion quotes a previously unpublished (non-precedent forming) decision that directly states that discrimination based on sex includes discrimination against transgender individuals for gender nonconformity. The court also stated that: "There is no denying that transgender individuals face discrimination, harassment, and violence because of their gender identity."

Controversy Over Contrary Decisions

The decision in the case stands in direct contrast to the case of Gavin Grimm, which was derailed when the Trump administration withdrew the Department of Education recommendation allowing transgender students to use their gender identity conforming bathroom. Like Ash, Gavin wanted to use the bathroom that conformed to his gender, but was denied. He also won an injunction, but it was recently vacated due to the DOE's policy shift.

Ash's case changes the landscape for transgender rights. While Gavin Grimm's case may no longer be headed to the Supreme Court, there's a good chance this case may.

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