The case involves a now-graduated Kenosha Tremper High School student. Ash Whitaker is a biological female who wanted to identify as a male and began doing so in middle school. School officials ultimately denied Ash permission to use the boys’ restroom but made available to her a single-user facility. The school also did not allow her to run for Prom King in her junior year. Using a Transgender Rights group and sympathetic attorneys, Whitaker sued the school district in federal court on the grounds of sex discrimination.
In September, 2016 U.S. District Judge Pamela Pepper granted this now 17-year-old high school senior permission to use the boys’ bathroom at the high school. Kenosha Unified School District appealed the ruling to the US 7th Circuit Court of Appeals, arguing that the harm to other students, particularly male students using the bathroom, outweighs any harm to Whitaker.
The all-female panel of judges on the 7th Circuit Court of Appeals heard oral arguments on the case this past March and rendered its decision this past May. The 7th Circuit ruled unanimously that Whitaker high school could use the boys’ restroom (and presumably other intimate facilities) at school, citing Title IX protections against “sex discrimination.” The Kenosha Unified School District is petitioning the US Supreme Court to take this case.
The 7th Circuit’s ruling in this case is so egregious that we felt obligated to assist as the school district petitions the high court to take on this case to clarify the fundamental definition of ‘sex’ and the fundamental rights of students to privacy and safety at school. We hope and pray our nation’s highest court will see the importance of rectifying the flawed reasoning adopted by the 7th Circuit in this case and rule in favor of common decency and common sense.
This Amicus Brief we have joined, in part, urges the U.S. Supreme Court to grant the petition to: 1) “clarify-but not redraft-the Title IX statute at issue;” 2) “clarify that policies providing sex-segregated private facilities do not constitute ‘sex stereotyping’”; and 3) “affirm the unambiguous language of Title IX and its implementing regulation.”
Federal Title IX law has been at the center of the transgender issue for some time. In May of 2016, then-President Obama via his Departments of Justice and Education issued a “dear colleague” letter to all public schools and to all colleges and universities that take any federal monies informing them that they were to let boys who identify as girls use the girls restrooms and locker rooms and play on the girls’ athletic teams, and vice versa. The letter also directed faculty and staff to address the students by the pronouns they requested or better yet to avoid using any gender-based pronouns at all. Essentially what this memo did was to unilaterally change the meaning of “sex” as male and female as used originally in the Title IX law to “gender identity.” Earlier this year, President Trump sent out a letter to the same universe stating that President Obama’s directive was revoked. However, the legal arguments remain and are growing.
As our friends and partners at Alliance Defending Freedom note, the key legal issue in this case is “whether federal sex nondiscrimination law — Title IX — which was intended to provide equal access for girls to educational opportunities — will instead be used for a purpose other than Congress intended.”
Wisconsin Family Council is honored to be part of this friend-of-the-court brief standing with the Kenosha Unified School District as it seeks to maintain safety and privacy for all students, not just for some students who are seeking special rights and protections. We look forward to hearing that the Supreme Court will indeed accept this important case.