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Wisconsin Trans Teen's Case Makes It To Federal Appeals Court

Ash Whitaker is suing his school district for the right to use the boys' restroom.

A transgender Wisconsin teen's fight for bathroom access at his school has moved to a federal appeals court.

17-year-old Ash Whitaker filed a federal lawsuit against Kenosha Unified School District in July, after his school said it wouldn't allow him to use the boys' restroom.

The suit alleges that teachers and staff still call Whitaker by his birth name and wouldn't allow him to run for prom king until his classmates protested.

Public bathroom

According to the complaint, Whitaker began openly identifying as male during his freshman year in high school. Though he's taken hormone treatments and notes from his doctors identify him as a boy, school officials continue to discriminate against him because of his trans identity.

The school district has said their bathroom policy requires students to use restrooms in accordance with the genders on their birth certificates and that Whitaker would be welcome to use the boys' bathroom if he gets his certificate changed. However, under Wisconsin law, this can only be achieved by undergoing gender reassignment surgery.

A federal judge ruled in Whitaker's favor last September, but the district later appealed.

Attorneys for both sides presented oral arguments this week at a hearing before the 7th Circuit U.S. Court of Appeals in Chicago.

“There’s still a lot of hate in the world, a lot of misunderstanding, definitely; but there’s still a lot of hope, and that’s what we kind of want to come away with. We feel very positive about how it went, how things have been going,” said Melissa Whitaker, Ash's mother.

Mark Ralson/Getty

Gary McCaleb, an attorney with Alliance Defending Freedom, has represented parents and schools challenging trans-inclusive restroom policies and said Kenosha's bathroom stance makes sense.

“The sexes should not be intermingled in privacy facilities," he stated. "Our organization represents dozens and dozens of boys and girls who are in a situation where they’re finding the opposite sex in their locker rooms and their restrooms. That’s a direct violation of privacy, and they need that protected. All students need their privacy protected."

McCaleb maintained that even though ideas of gender and sexuality are changing, that doesn't mean restroom access should change, too.

“What is in your mind does not determine your sex. Sex is a biological fact. It’s formed at conception. It’s male or female," he remarked. "That’s science 101 that’s being taught in these schools. So gender identity does not establish what your sex is. Gender identity is completely different."

Whitaker's own attorneys argued in court that the 17-year-old's friends, family, classmates, doctors and other peers all recognize him as a boy and that the school district is the only group that refuses to do so.

“Now, as more and more transgender people feel comfortable living consistent with their gender identity in their lives and at school, it’s maybe not surprising that we’re seeing these cases, but we hope that trans people in schools and elsewhere will be able to be respected for who they are,” family attorney Joseph Wardenski argued.

A panel of three 7th Circuit judges will review his case. It was unclear when they would rule.

While Whitaker awaits the ruling, an injunction has been passed to allow him to use the boys' restroom for the remainder of his senior year.

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