Federal ruling makes it easier for Indiana transgender students to use bathroom

Fatima Hussein | IndyStar

In a case expected to influence policy in Indiana schools, a U.S. Court of Appeals ruled in favor of a transgender student who challenged a Wisconsin school district's policy limiting his bathroom usage.

The decision, coming from the U.S. Court of Appeals for the Seventh Circuit, has a direct impact on Indiana's public schools. Indiana Department of Education officials say the ruling will "drive guidance" on transgender students' rights in the future.

Legal experts say the ruling is yet more proof that the Seventh Circuit has adopted more progressive policies when it comes to sexual orientation and gender discrimination claims.

A unanimous three-judge panel ruled in favor of Ashton Whitaker, affirming a District Court's preliminary injunction that halted the Kenosha (Wisc.) Unified School District's policy on transgender student bathroom usage, affecting Whitaker.

Whitaker wanted to use the boys bathroom, but the school created a "gender neutral" bathroom specifically for transgender students, according to court documents. The court found that to be discriminatory.

"The School District has not demonstrated that it will suffer any harm from having to comply with the district court’s preliminary injunction order," wrote Circuit Judge Ann Claire Williams. "Nor has it established that the public as a whole will suffer harm."

The appeals court upheld the lower court's ruling on constitutional grounds, finding that Whitaker would succeed on his claim under Title IX of the Education Amendments of 1972 because the school district's policy violated the Equal Protection clause of the 14th Amendment.

"That finding has incredibly huge implications, in both the Seventh Circuit and nationally," said Anthony Michael Kreis, a professor at Chicago-Kent College of Law.

"Indiana schools, and any school in the Seventh Circuit is on notice that the Seventh Circuit is not going to treat their case favorably," Kreis said. "The writing is on the wall that transgender discrimination is not palatable if the school district wants to defend these policies."

Adam Baker, a spokesman for the Indiana Department of Education, said the department's legal representatives are using Tuesday's decision to "drive guidance" for school districts in the future.

"Indiana has been very fortunate as a local control state that we have handled issues like this very well," he told IndyStar. He added that the department of education has not received any complaints from students or school districts regarding transgender student issues.

"It is important to us to make sure students feel safe and protected in the school system," Baker said.

The Seventh Circuit has heard several Indiana cases involving gender and sexual orientation discrimination.

Most recently, the court examined whether Indiana discriminates by not recognizing two married women both as parents on their children's birth certificates.

More: Same sex couples sue over birth certificates

More: Judge to Indiana same-sex couples: 'You can't overcome biology'

More: 7th Circuit rules that civil rights laws protect LGBT employees from workplace bias

In April, the Seventh Circuit ruled 8-3 that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964.

The ruling came as the result of a lawsuit filed in August 2014 by South Bend resident Kimberly Hively, a former part-time instructor at Ivy Tech Community College who said the college did not hire her full-time because she was a lesbian. Ivy Tech denied her claim.

Regarding Tuesday's ruling, Kit Malone, a transgender advocate at the ACLU of Indiana said the ruling is a win for transgender students and the community as a whole. She acknowledges, however, that the ruling is not set in stone.

"It’s a preliminary injunction that right now impacts that one school in Wisconsin and is not final, but it gives us hope that Ash was likely to succeed on his Title IX claim."

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.