Trans

Another Court Panel Allows Trans Teen to Use Bathroom of His Choice

Trio of judges reject request by school district to put ban back in place.

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Bathroom sign
Aude Guerrucci/Polaris/Newscom

Another federal circuit court has weighed in on whether transgender school students should be able to select which bathrooms to use and has ruled in the student's favor.

A three-judge panel of the 7th Circuit Court of Appeals today affirmed an injunction in place telling Kenosha Unified School District in Wisconsin that it can't refuse to let Ashton Whitaker, 17, use the male facilities.

The panel heard the case yesterday. Read the ruling here.

Whitaker began transitioning into a male in 2014, is currently taking hormones, and has legally changed his name. His school district, however, is refusing to acknowledge his change unless he's had full reassignment surgery, according to the lawsuit.

They've ordered him to use the women's facilities (even though he looks like a male) or a singular unisex bathroom far from his classes to which none of the other students have access.

He has sued and today the panel unanimously decided in his favor. They chose Whitaker's interpretation of Title IX (They have to respect his gender identity under the law's restrictions against sex discrimination.) over the school district's interpretation (They're protecting the other students' privacy with sex-based segregation as permitted under the law). The judges were not impressed with the district's insistence they were protecting students from harm, dismissing it as all speculative. The school district had no problems with Whitaker using male facilities until they suddenly did:

The School District has not produced any evidence that any students have ever complained about Ash's presence in the boys' restroom. Nor have they demonstrated that Ash's presence has actually caused an invasion of any other student's privacy. And while the School District claims that preliminary injunctive relief infringes upon parents' ability to direct the education of their children, it offers no evidence that a parent has ever asserted this right. These claims are all speculative.

This particular federal case matters because it comes after Attorney General Jeff Sessions rescinded an executive branch interpretation of Title IX from under President Barack Obama's administration. Under Obama, the Department of Justice and Department of Education told schools they must accommodate transgender students based on some current court precedents related to sex-stereotype-based discrimination.

The Supreme Court had been planning to hear this case, in part to look at whether the court should defer to the executive branch when deciding how to apply the law to transgender students. But after Sessions withdrew the order, the Supreme Court kicked the case back down to the 4th Circuit and ordered a new review.

This ruling, then, is not based on any sort of deference to the executive branch on how to interpret Title IX. Instead, the court is using other previous court precedents that determine discrimination on the basis of whether somebody conforms to gender stereotypes is illegal. The panel today determined that Whitaker had a good chance of winning a case that extends that stereotype argument to transgender students. That's exactly what happened with the case the Supreme Court is considering. So the panel decided to leave in place an injunction allowing Whitaker to continue using the men's facilities.

This panel ruling doesn't really change the math or arguments in this debate whatsoever. It's really more of a sign that this issue is going to continue coming up in the federal courts until the Supreme Court finally weighs in or until Congress passes some sort of legislation clarifying Title IX (and other sex-focused discrimination laws) one way or the other.

Also worth noting: The 7th Circuit is also where the full court ruled that workplace discrimination against people on the basis of being gay or lesbian is also a violation of federal law for the same reason. Even though federal laws don't directly outlaw discrimination on the basis of sexual orientation, the court accepted the argument that anti-gay discrimination is fundamentally based on gender-based stereotypes and is therefore forbidden.

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  1. And the male students probably wouldn’t object if Ashton wanted to join them in the gym’s male showers either.
    But I wonder if this would work equally in reverse?

  2. Federalized bathroom policies! Libertarian moment!

    That word truly has no meaning anymore

    1. Libertarian moment!

      You really do have a gift for creative criticism.

    2. Let’s face it. 90% of the modern “libertarian” movement is just people wanting legalized weed. The government gives them that and any other statist policy can be justified.

      1. Legal AND taxed!

    3. I seemed to miss the part where Scott Shackford is jumping up and down in joy with this court ruling.

  3. Whatever happened to one walking down to the crick to perform their necessaries?

    1. It’s a sex crime if anyone see’s you do that.
      But, somehow, if you do the same thing, communally, against porcelain, it’s OK.

  4. a singular unisex bathroom far from his classes to which none of the other students have access.

    His own personal bathroom? That’s Costanza-esque! This person is living the dream!

    1. I am reminded of “The Cissy”.

  5. ‘I knew a guy who said he was a petunia ,insisted we water him each day’

  6. Which bathroom would you use if you are “agender?”

  7. the court accepted the argument that anti-gay discrimination is fundamentally based on gender-based stereotypes and is therefore forbidden.

    “the court accepted the argument that anti-felon discrimination is fundamentally based on criminal-based stereotypes and is therefore forbidden.”

    1. Oh, nice. That’s a fun game.

  8. Is this what’s behind door number 3?

  9. The problem with humoring people in your news coverage is that it makes the stories gratuitously confusing. I eventually realized that Whitaker must actually be a woman, because this story would make absolutely no sense otherwise, but you wouldn’t know it from reading the article.

    1. “Whitaker began transitioning into a male in 2014, is currently taking hormones, and has legally changed his name. His school district, however, is refusing to acknowledge his change unless he’s had full reassignment surgery, according to the lawsuit.

      They’ve ordered him to use the women’s facilities (even though he looks like a male) ”

      Can’t ‘transition’ to male if you aren’t female. Seemed pretty clear to me.

  10. When are the courts going to address the trans preschoolers?

  11. “Although not part of this appeal, Ash contends that he has also been subjected to other negative actions by the School District, including…requiring him to room with female students or alone on school?sponsored trips.”

    I suppose Whitaker’s lawyers thought arguing that requiring opposite sex students to room with a transgender student might be a bridge too far to actually include that complaint as a formal part of the appeal.

    “The School District actually exacerbated the harm, when it dismissed him to a separate bathroom where he was the only student who had access. This action further stigmatized Ash, indicating that he was “different” because he was a transgender boy. ”

    If you are the only one in the school, that does, in fact, make you unavoidably different.

    “By definition, a transgender individual does not conform to the sex based stereotypes of the sex that he or she was assigned at birth.”

    Arguably the only persons who could be said to have sex assigned to them at birth are those with sex chromosomal disorders. Everyone else is the sex they are at conception. Sex is an immutable condition.

    1. “Instead, the Sixth Circuit noted that Price Waterhouse established that the prohibition on sex discrimination “encomp-asses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”

      Whitaker was prohibited from using the boy’s room because Whitaker is of the female sex. It had nothing to do with compliance with gender norms. In fact, the court seems to be arguing that because Whitaker conforms with male gender norms the school is compelled to ignore the student’s sex, which seems to turn their rationalization on its head.

      Also, it is hard to see, with the reasoning the court used, how any sex segregated facility is permittable. It would seem that women’s sports is illegal under Title IX if they ran the logic through to a conclusion.

      1. I saw the logic the same way.

        I hate it when the courts torture logic in order to come to their predetermined conclusion. Even when they are agreeing with me. Or perhaps especially when they are agreeing with me.

        In this case there is no way to follow any of their logic to the obvious and contradictory conclusions. They are clearly saying that “failing to conform to gender norms” cannot be discriminated against. But there are tons of other variations that there is no way in hell they are going to allow, let alone endorse in court. The internet is rife with examples of deviations from “stereotypical gender norms” that no court is going to allow to be practiced in a public high school.

        So they don’t mean a word of it when they bloviate all that legalese. What they mean is “you rednecks are going to accept that transgender people are completely normal and you are going to treat them as if they were born as whatever they identify as”. The rest of it is just cover for their personal opinions of what is right and what is wrong.

        1. So they don’t mean a word of it when they bloviate all that legalese.

          Blah blah blah blah blah blah blah BFYTW blah di blah

          Increasingly it’s all just gaslighting. Yet another example of the Left defecting (and defecating) on the principles which make civilization possible. Rule of Law? Pfftph! Words mean whatever we want them to mean.

          And this is why the Right has lost for 100 years. The Right still plays by the rules, while the Left defects.

          The Right should announce “We’re going to play by BFYTW too. Let us know when you have an interest in a mutual and reciprocal civilization. Until then, go fuck yourselves with a rusty pipe.”

    2. “By definition, a transgender individual does not conform to the sex based stereotypes of the sex that he or she was assigned at birth.”

      So blame the sex stereotypes, not the sex. Transgender is like lowering the river instead of raising the bridge.

  12. 1) Allowing someone under the age of 18 to start taking hormones is child abuse.
    2) To state that no one has complained as a reason to not take action is absurd from a legal point of view. If the school hasn’t let her use the boy’s restroom, then how could the boys complain?
    3) Ask what would happen if someone used the wrong bathroom who was NOT under court order–ie if John Smith goes in the girls locker room and showers with the girls, are the girls ok with it or is John expelled and put on the sex offender list? Go on, guess.
    4) Once again, judges are taking this as an abstract exercise, not one involving real people who are getting naked. What happens if this girl who looks like a boy nevertheless causes an erection in the boy’s showers–is the boy now in trouble?
    5) If it is ok for transgendered people to use the opposite biological sex locker rooms in high school, why can’t any boy go to the girl’s locker room. Indeed, why are students required to wear clothes at all?

    1. I have big questions about #1 as well. It certainly would make sense that if you could definitively diagnose a transgender condition early, it would be best to transition as soon as possible, if that is the appropriate treatment.

      But my experience has been that sexuality is extremely complicated and not at all solidified in the mind of many teenagers. I’m not sure about gender identity.

      Two examples:

      1. We had a little boy at the neighborhood park who “identified as a girl”. For about two years she (he) was wearing dresses and going by a girl’s name. Then one day he had cut his hair and was wearing boy’s clothes. So what happened? Was it just a phase? Did his parents get too excited by all the trans coverage? Or will he go back to identifying as a girl? Who knows?

      2. One of my best friends in high school turned out to be gay. Not just “I like guys”, but way out on the fringe with lots of feminine leanings. Before he graduated, he seemed pretty typically heterosexual – if a bit obsessed with masturbation jokes. After graduation he moved in with his girlfriend. They broke up about two months later because he was seeing an older woman. They got engaged. The next time I saw him was during a fall break. He was with his boyfriend at the mall, feathers in his hair and swishing about. Didn’t see that coming.

      Two people who had issues. But were they in a position to make life altering choices at that age? I wonder how we’ll ever know if we are helping.

  13. When I was a boy the only ones I wanted to see my wiener was other boys. That’s the way we wanted it, only boys with our wieners out in the bathrooms. I had my boy wiener out, just like the boy next to me, and that’s how we liked it. Every boy in the room had a wiener just like every other boy in the room and they were all out doing their business in private for everyone to see.

    I don’t care for these sickos nowadays throwing the unwienered into the mix. Unnatural.

  14. If you are a girl who wants to become a boy and then have a girlfriend, you are a lesbian. But lesbians don’t want a boyfriend, even if “he” used to be a “she”. It is normal for some gay men to be very effeminate. If they transition to a girl and want a boyfriend, the gay men will not be interested and neither will the straight guys as soon as they figure it out.

  15. The 7th Circuit is also where the full court ruled that workplace discrimination against people on the basis of being gay or lesbian is also a violation of federal law for the same reason.

    “Workplace” as in “you forfeit your property rights the moment you dare – dare, I say! – employ someone”. Like magic.

  16. Another federal circuit court has weighed in on whether transgender school [sic] students should be able to select which bathrooms to use and has ruled in the student’s [sic] favor.

    So only one student out of all students who go to transgender school was lucky enough to be bestowed with the right to choose on whose crapper to take a dump.

    If I read that correctly, that is.

  17. Just to make it clear, we can presume Ashton Whittaker looks like this:

    https://www.quora.com/profile/Konnor-T-Crewe/ (an old friend who I knew as a woman, but now is, as you can see, to all appearances, male)

    And conservatives (and some of the commenters on this list) want him to use the women’s bathroom because he used to look feminine.

    Can you imagine what would happen if he tried to walk into the Ladies’ Room in an airport, or a fancy restaurant? Or a girl’s dorm?

    1. There are photos in the linked article. You don’t have to presume anything. She’s very girlish.

      1. Correction. I found the photos in a different article:

        http://www.dailymail.co.uk/new…..trict.html

    2. So you are saying they must treat Whitaker as a boy because Whitaker conforms to male gender norms on appearance? Despite the facilities being segregated by sex?

    3. And conservatives (and some of the commenters on this list) want him to use the women’s bathroom because he used to look feminine

      To be fair, there are a lot of diesel dykes out there who are John Wayne compared to the progressive male Soy Division we see on our nation’s college campuses.

  18. even though he looks like a male

  19. even though he looks like a male

    No she doesn’t. She looks like a short-haired girl dressing up in boys’ clothes, which is what she is.

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  21. Well now only a few short steps to the logical conclusion, if sex/gender is a protected class, under the same basis that race is a protected class, separate but equal is inherently unequal, so any sex segregation is unacceptable discrimination. Playing ‘just how trans does one have to look to choose their facility’ can’t last. I’m all for this by the way; it will be awkward for those raised during segregation, but like race-segregated bathrooms, those of us who grew up without them simply don’t have that discomfort with sharing with the other races.

    1. Which means you cannot have sex segregated facilitates. Women probably won’t like not having their own locker rooms, showers, and sports leagues, but it is a sacrifice that must be made to obsessive-compulsive standards of equality.

  22. I see this is going over typically smoothly with the most open-minded people in the worldt who just want people to live how they want to live without outside interference.

    Oh, sorry, no, it’s a girl with short hair, should we burn it!?!?

    1. No, it is a girl with short hair who refuses to use the facilities designated for females, who refuses to use an alternative, and who is generally cranky that she cannot impose her presence in areas designated for males.

      Not putting up with that is hardly burning her.

      1. I don’t know how you are accustomed to using restrooms. Maybe you’re a pervert fag. But it seems that the least uncomfortable approach for all concerned is to let the boy use the restroom of his choice and let the other people in the restroom mind their own business.

        1. Whitaker was also upset that the school did not room Whitakers with the boys on school trips. This is about more than bathrooms.

  23. Whitaker began transitioning into a male in 2014, is currently taking hormones, and has legally changed his name. His school district, however, is refusing to acknowledge his change unless he’s had full reassignment surgery, according to the lawsuit.

    Remember, it is now Libertarian as all hell to allow feelings to trump actual biological reality in determining rules.

    She won’t be a boy after surgery, either. Just a mentally disturbed girl.

    They chose Whitaker’s interpretation of Title IX (They have to respect his gender identity under the law’s restrictions against sex discrimination.)

    In spite of “sex” and “gender” not being interchangeable terms.

    The judges were not impressed with the district’s insistence they were protecting students from harm, dismissing it as all speculative.

    I bet, if students are harmed, the courts won’t be nearly as dismissive. I’d just have schools not offer bathrooms period and thank the mentally ill snowflake for it.

    This ruling, then, is not based on any sort of deference to the executive branch on how to interpret Title IX. Instead, the court is using other previous court precedents that determine discrimination on the basis of whether somebody conforms to gender stereotypes is illegal.

    Another reason to ignore courts as they are purely partisan things at this point.

    1. Thank god we have your dispassionate science-based outlook to correct for all this feelings stuff.

      1. I have, you know, chromosomes and the like.

        Can you point to any actual hard science to prove “transgenderism” actually exists?

        None of this “Well, brain studies show similar arousal rates” and the like. I want ACTUAL science.

        I can point to “you know, x and y chromosomes exist”. That’s hard science.

        1. What do chromosomes have to do with bathrooms?

          1. Chromosomes have to do with sex, which is what bathroom rules have been based on for quite a long time now.

            You now want us to stop that because of…feelings.

            1. But I thought this was a place where libertarians hangout. Live and let live. Don’t have the iron fist of government interfere in your private choices if at all possible.

              But then you’re uncomfortable because a stranger far away is using a bathroom you don’t approve of, so we must leave room for exceptions. It’s definitely not about feelings though on your part.

  24. 2) To state that no one has complained as a reason to not take action is absurd from a legal point of view. If the school hasn’t let her use the boy’s restroom, then how could the boys complain?

    If one DID complain, then would the court vacate its order immediately?

    Because I’m betting they would not.

    And I’d test it because I’d complain just out of principle.

  25. Simple test on which restroom you should use – Can you hit a urinal cake at a minimum of 2 feet without whizzing on yourself?

    1. Or how about genital monitors at every public restroom.

      “This is libertarianism, not anarchism, you fucking moron.”

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