7th Circuit Panel Presses School District Hard on Anti-Transgender Restroom Policy

By Adam Polaski • March 29, 2017 • 5:47 pm

Today a three-judge panel from the U.S. Court of Appeals for the 7th Circuit heard oral argument in Whitaker v. Kenosha Unified School District, a case brought by the Transgender Law Center on behalf of a transgender boy who has been denied access and use of of the boys’ restroom by his Wisconsin school’s school board. The hearing today was on a preliminary injunction issued by a district court judge in 2016, which permitted the boy, Ashton Whitaker, to use the boys’ room.

The 7th Circuit Court of Appeals has jurisdiction over Wisconsin, Indiana, and Illinois. A ruling on a separate LGBT case, Hively v Ivy Tech Community College, about a woman who faced employment discrimination because of her sexual orientation, is currently pending.

The three-judge panel of judges, including Chief Judge Diane P. Wood, ripped into Ronald Stadler, the attorney representing the Kenosha Unified School District, challenging him hard on why Ashton should not be permitted to use the restroom. Listen and read some exchanges below, and listen to the full argument here from Equality Case Files:

Chief Judge Diane P. Wood: This is a preliminary injunction, and so one of the important points deals with the relative balance of harms, and I have scoured the record in this place and I cannot see any evidence of harms. I can see speculation, I can see attorney argument, but I don’t see any evidence on the school district’s side of harm that would occur by allowing this transgender boy to be a boy for purposes of bathroom usage.  But there’s a lot of evidence that this has been deeply harmful to Ashton Whitaker himself – that there’s been psychological harm, there’s been suicidal ideation, there’s the scholastic harm of wasting time from running to and from this one bathroom he can use instead of sitting in class. So tell me something about hard evidence of harm from the school district’s side.

Ronald Stadler (Representing the Kenosha Unified School District): The invasion of the privacy of every other student in the school district.

Judge Ilana D. Rovner: But you have no complaints from the students – do you?

Stadler: Certainly we have.

Wood: Where is it in the record? I don’t see it anywhere. I see you assume this, but it’s not clear to me that there wouldn’t be a person or two who would be objecting to having a male – by all external indicia – in the girls’ room, such as Ashton Whitaker. I don’t see who’s complaining, and where’s the evidence? During the 7 months, for example, that he used the boys’ room, who complained? Where’s the evidence in the record? Did you get affadavits from people? Did you get evidence in the record? Evidence.

Stadler: We do not have evidence in the record of all of the people who complained.

Wood: Do you have evidence in the record of any people who complained?

Stadler: Yes, in plaintiffs’ complaint.

Judge Ann C. Williams: Who are they?


Judge Ilana D. Rovner: This implicates privacy concerns. Is there any reason, for instance, to think that transgender children are more likely to engage in intrusive behavior in the bathroom than other children?

Ronald Stadler (Representing the Kenosha Unified School District): I believe that transgender children, like any children, could engage in intrusive behavior. Anyone could.

Rovner: So what are you going to do with all of those other children who are acting in an intrusive manner?

Stadler: They’re subject to discipline.

Judge Ann C. Williams: I want to get back to specific complaints in the record.

Rovner: That doesn’t, you know, make very much…if the concern is based on the fact that these children look different, shouldn’t there then be different bathrooms for pre-pubescent children and post-pubescent kids? The pre-pubescent kids are likely to be curious about the bodies of the post-pubescent kids.

Stadler: We have, as a society, always as a matter of privacy, segregated our bathrooms.

Chief Judge Diane P. Wood: But you’re assuming the answer to our question. The question is not whether there can be boys’ rooms and girls’ rooms, men’s rooms and women’s rooms. The question is Who is a boy and Who is a girl. In your view, as you’ve now clarified it, whatever they’ve wrote down on the birth certificate unless or until it’s amended answers that question. But it actually, of course, doesn’t for a certain number of people. There are people who for either biological reasons, chromosomal reasons, psychological reasons, who are assigned to a particular gender where some or all of their physical characteristics may not point in that direction, at least according to assumptions.


Chief Judge Diane P. Wood:  Why can’t you say that the only reason you’re not letting Ashton Whitaker use the boys’ room is because you’ve looked at his birth certificate and it says female, and so on account of the sex on the birth certificate, he is being deprived of the use of a facility.

Ronald Stadler (Representing the Kenosha Unified School District): Because we treat men and women exactly the same in that regard. Whether you are male or female, you use the bathroom that corresponds to the sex that’s on your birth certificate.

Wood: It’s kind of a ‘separate but equal’ argument.

Stadler: It’s not necessarily ‘separate but equal,’ but it has nothing to do with sex.

Wood: It has everything to do with sex! That’s the only reason you’re not letting him in the bathroom.

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