Bruce Vielmetti

Milwaukee Journal Sentinel

A federal judge on Monday declined to dismiss a transgender student's discrimination lawsuit against the Kenosha Unified School District, one of a growing number of such restroom access suits around the country generating strong reaction on both sides.

U.S. District Judge Pamela Pepper found that at this early stage of the case, Ash Whitaker has alleged enough facts to support a plausible violation of both Title IX or unlawful discrimination under the equal protection clause of the 14th Amendment.

The district had argued the term "sex" as considered under Title IX did not cover a transgender student, and the suit should be dismissed. Title IX refers to the 1972 law that prohibits discrimination in federally funded education programs based on sex.

But Pepper cited a variety of common definitions of the term, and how it has been considered in other cases, such as those alleging discrimination in the workplace, to conclude that transgender has not clearly been excluded from the definition for purposes of discrimination claims.

Whitaker was born a girl but identifies as a boy and began living more overtly as a boy in middle school. He sued in July, claiming that the district's ban on his use of the boy's restroom, and other actions, amounted to unlawful sex discrimination under Title IX, and deprived him of equal protection under the 14th Amendment.

Lawyers in the case are set to return to Pepper's courtroom Tuesday to argue Whitaker's motion for a preliminary injunction that would block the district from barring his use of the male restrooms at school. His attorneys will have to show Whitaker would suffer irreparable harm without the preliminary order.

Use of his birth name and female pronouns was another practice Whitaker sought to stop by court order. But attorneys said Monday that Whitaker legally changed his first name to Ashton last week, and the district's attorney, Ronald Stadler, said the district would honor that court order and change all Whitaker's school records to reflect that.

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But he noted that the birth certificate will still reflect Whitaker's biological gender, and the attorney couldn't promise there would never be an occasion when a school district official might refer to him as she or her.

"Are we going to have someone thrown in jail because they slipped on a pronoun?" Stadler asked. Pepper said no.

Stadler also said that Whitaker's claim that the district planned to make any transgender students wear a green wristband was never intended, proposed or implemented.

The lawsuit says district officials denied him access to the boys' restrooms, intentionally and repeatedly used his birth name and female pronouns to identify him; instructed guidance counselors to issue bright green wristbands to Whitaker and any other transgender students to more easily monitor their bathroom use; and required him to room with girls on overnight school trips.

One of Whitaker's attorneys, Joseph Wardenski, said after the hearing that his client is still technically banned from the male restrooms at Tremper High School. He said Whitaker tries to minimize the need to use a restroom, and when he must, often "goes where he wants to go."

Last month, the U.S. Supreme Court blocked a federal appeals court order allowing transgender students to use their preferred restrooms in Virginia while a case there proceeds. It was one of many suits challenging a May letter from the U.S. Department of Education saying school districts could lose funding if they discriminate against transgender students, such as by making them use the restroom corresponding to biology rather than their identified gender.

Also last month, a federal district judge in Texas ruled that the new federal guidelines on expanding transgender students' restroom access was an overreach, and blocked it. Wisconsin was among the more than a dozen states that joined in the challenge.