Ash Whitaker and his mom, Melissa.

Ash Whitaker and his mom, Melissa.

Seeks Non-Discriminatory Treatment and Access to School Restrooms Consistent with His Gender Identity

July 20, 2016 — Yesterday, Transgender Law Center and Relman, Dane & Colfax PLLC, a civil rights firm based in Washington, D.C., filed a lawsuit in federal court in Wisconsin on behalf of Ashton (Ash) Whitaker, a transgender boy, who has been denied access to male-designated restrooms at his high school, subjected to daily surveillance and threatened with disciplinary action if he continued using the boys’ restrooms.  Named as defendants are Kenosha Unified School District No. 1 Board of Education and Superintendent Sue Savaglio-Jarvis.

The complaint, available below, alleges that these and other discriminatory actions—including a proposal that all transgender students be made to wear bright green wristbands in order to monitor their restroom use, school administrators’ insistence on using Ash’s birth name and female pronouns, and the school’s repeated isolation of Ash from his peers on overnight school trips—violates Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the U.S. Constitution.  A rising senior in the top 5% of his class, Ash fears that school officials will punish him for exercising his rights under federal law, and that any sanction on his school records will make it harder to gain admission to college.

“My peers and many of my teachers know me as a boy, and have been incredibly supportive,” said Ash.  “But the school administrators have made my life miserable every school day since this spring, when they told me I could no longer use the boys’ restrooms, which I’d been using with the support of my classmates for months.  I worry about how I’m going to navigate the demands of senior year if I can’t even go to the bathroom without worrying that I’m being watched.”

Federal nondiscrimination laws make it clear that transgender students have the right to use facilities consistent with their gender identity. For many years, the U.S. Department of Education (ED) and U.S. Department of Justice (DOJ) have interpreted Title IX of the Education Amendments of 1972, a federal law prohibiting schools from discriminating against students on the basis of sex, to require schools to treat transgender students consistent with their gender identity, including allowing transgender students to use facilities consistent with their gender identity. In April 2016, the U.S. Court of Appeals for the Fourth Circuit held that the ED guidance on this topic was entitled to deference, and that a transgender male student in Virginia should have been granted access to male-designated restrooms.  [G.G. v. Gloucester County School Board, No. 15-2056 (4th Cir. April 19, 2016), available at http://www.ca4.uscourts.gov/opinions/published/152056.p.pdf ].  ED and DOJ reaffirmed and amplified the federal government’s position in additional guidance issued on May 13, 2016. That guidance, which is currently being challenged in a lawsuit brought by several states, including Wisconsin, is available at https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-civil-rights.   Following that Fourth Circuit decision, the Eastern District of Virginia issued a preliminary injunction ordering the Gloucester school district to grant the plaintiff student access to boys’ restrooms in the upcoming school year.

Transgender Law Center (TLC) sent a letter to the school district in April 2016, outlining the district’s legal obligations and demanding that Ash be permitted to resume using the boys’ restroom.  When the district refused, TLC filed an administrative complaint on Ash’s behalf with the U.S. Department of Education.  That complaint is being withdrawn, and the legal issues will be resolved in federal court.

“Transgender youth should have the same opportunity as all other students to go to school and get an education without being singled out for harassment and discrimination by school administrators,” said Transgender Law Center Executive Director Kris Hayashi. “It is past time for schools to get in line with the law and treat all their students, including transgender students like Ash, fairly and equally.”

“By whatever name you call it, the defendants have engaged in a campaign to segregate and humiliate Ash Whitaker because he is transgender,” observed Joseph Wardenski, an attorney at Relman, Dane & Colfax, PLLC, a Washington, D.C.-based civil rights law firm.   “Having the support of his peers and many educators has not shielded him from this blatant discrimination.  We hope that an order from a federal court will do so.”

Pledl & Cohn, S.C., based in Milwaukee, Wisconsin, is assisting Transgender Law Center and Relman, Dane & Colfax as local counsel in this case.

Students facing harassment or discrimination can reach out to Transgender Law Center for support through the legal information helpline at www.transgenderlawcenter.org/help.

To access documents related to this case and more, visit: http://transgenderlawcenter.org/legal/youth/whitaker.

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Transgender Law Center is the largest national organization dedicated to advancing justice for transgender and gender nonconforming people through litigation, policy advocacy, and public education so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. www.transgenderlawcenter.org

Relman, Dane & Colfax PLLC is a national civil rights law firm based in Washington, DC.  The firm litigates civil rights cases in the areas of housing, lending, employment, public accommodations, education, and police accountability.  Our national practice includes individual and class action lawsuits on behalf of plaintiffs who have suffered discrimination and harassment on the basis of race, national origin, color, religion, sex (including gender identity), disability, age, familial status, source of income, and sexual orientation.  www.relmanlaw.com

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Transgender Law Center (TLC) is the largest national trans-led organization advocating self-determination for all people. Grounded in legal expertise and committed to racial justice, TLC employs a variety of community-driven strategies to keep transgender and gender nonconforming people alive, thriving, and fighting for liberation.

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