Federal Courts Issue Two Victories for Transgender Students Facing Discriminatory Restroom Policies

By Megan Clayton • September 28, 2016 • 10:47 am

In the past week federal courts have delivered two major victories from transgender students, underlining that no one should face discrimination for being who they are while trying to do something as basic as using the restroom.


In a preliminary injunction issued last week in Wisconsin, U.S. District Judge Pamela Pepper ruled that the Kenosha Unified School District could not force a transgender boy, Ashton Whitaker, to use a bathroom separate from other students. In the decision, Judge Pepper noted that the policy was causing Ash emotional, psychological and even physical harm.

Executive Director of the Transgender Law Center Kris Hayashi applauded Judge Pepper’s decision, including her decision to call out the kinds of real harm transgender students face because of these policies. The Transgender Law Center and a private firm are representing Ash.

“We are thrilled for Ash, and grateful that the court recognized the urgent need to address the harm the school’s policy has caused him. Transgender students, like all students, should have the opportunity to go to school and get an education without being singled out for harassment and discrimination by school administrators.”

The Court will decide later whether or not the school’s policy violates Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the U.S. Constitution, as Ash’s lawyers and advocates for transgender equality have long contended.

In another victory this week in Ohio, U.S. District Judge Algenon Marbley ruled that a transgender girl at Highland Local Schools, outside of Columbus, should be able to use the girls’ restroom. The school district had explicitly challenged the Obama Administration’s recent reminder to schools that Title IX’s protections against discrimination in education apply to transgender students, a policy that Judge Marbley affirmed. The school district, Judge Marbley said, must treat the student “like the girl she is.”

In both cases, the judges also admonished the school districts for refusing to use students correct names and gender pronouns.

The Department of Education first announced in 2014 that Title IX protections covered transgender students. In 2016 the U.S. Department of Justice and the U.S. Department of Education reissued these guidelines in the wake of North Carolina’s passage of House Bill 2, which forces transgender students to use public restrooms—including those in schools—that are at odds with the gender they live every day.

These recent victories add another layer to the recent—and at times conflicting—judicial movement on these issues. In April, the U.S. Fourth Circuit Court of Appeals ruled in favor of a Virginia teenager who petitioned his school to use the restroom that matched his gender identity. That decision has been put on hold by the U.S. Supreme Court, which could review the case soon. Similar cases, including in Palatine, IL and Arcadia, CA, have affirmed that discrimination against transgender people constitutes illegal sex discrimination.

Whether you are transgender or not, using the restroom is a basic human need — all people need to use the restroom, including transgender people, and everyone should be able to do so without fear of discrimination. We’re pleased to see these positive rulings in Ohio and Wisconsin and will continue working to advocate for policies that ensure no one is discriminated against because of who they are.

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