23.4 - Good News: Successful suit by transgender boy against school could have wider application

Good News: Successful suit by transgender boy against school could have wider application

Next up, a bit of double-plus Good News on LGBTQ rights.

A couple of years ago as a sophomore, Ashton Whitaker, who is a transgender boy, sued his school, Tremper High School in Kenosha, Wisconsin, for the right to use to boy's bathroom at school.

In September 2016, US District Judge Pamela Pepper issued an injunction against the school district, saying that Whitaker must be allowed to used the boy's restroom while the case continued. The school district appealed.

On May 31, the second-to-last day of Whitaker's senior year, a three-judge panel of the 7th Circuit Court of Appeals unanimously rejected the appeal and upheld the lower court's injunction.

Writing for the court, Judge Ann Claire Williams disputed the school's claim that allowing Whitaker to use the boy's bathroom would somehow harm other students, writing that the School District had "failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents" and that "the harms identified by the school district are all speculative and based upon conjecture, whereas the harms to Ash are well-documented and supported by the record."

Ashton Whitaker

Note this doesn't mean the case is over; it means that the lower court's injunction that Whitaker must be allowed to use the boy's room while the case proceeds is valid - even if he will be able to take advantage of it for only two days before he graduates.

What makes this important - the double-plus part - is that while the ruling only applies to Whitaker, the court found as it did because it determined that upon a full review of the case he is likely to win on his claims that the school's actions violated Title IX, a federal law that prohibits discrimination in schools based on sex, and the Equal Protection Clause of the 14th Amendment.

Consider what that means, as pointed out by German Lopez at Vox.com: If Title IX shields transgender students from discrimination, then it's not just Ashton Whitaker's rights that are protected, but those of all transgender students. And if the 14th Amendment shields transgender people from discrimination, then it’s not just Whitaker's rights that are protected here, but potentially those of all transgender people.

It's all just hypothetical now, but depending on how other circuit courts react to this decision, if they refer to it in facing their own cases involving transgender rights, Whitaker v. Kenosha Unified School District could become the transgender community's Obergefell v. Hodges.

This comes at a time of rapid change of attitudes about transgender rights, similar to the rapid change we saw regarding same-sex marriage, which now claims the support of 64% of the American public - just 10 years ago support for same-sex marriage was less than 40%; 20 years ago it was 27%.

Consider that as recently as 2015 Americans were evenly divided on if transgender people can use the restroom that accords with their gender identity: a little less than 40% said yes, a little less that 40% said not.

But according to a poll done in March of this year, 53% of the Americans surveyed opposed laws requiring transgender people to use bathrooms that correspond to their sex at birth rather than their gender identity.

The gain in support for transgender rights across those two polls is 15 percentage points in just two years.

Now, we can't really directly compare those two polls: They were done by different organizations asking differently-phrased questions. But the gain in support indicated is too big to be ignored; too large to claim there has been no gain.

By the way, that same March 2017 poll, done by the nonpartisan Public Religion Research Institute, found that 70% of those polled favored protections for LGBTQ people against discrimination in jobs, public accommodations, and housing, a figure that included majorities of Democrats, Independents, and yes, even of GOPpers.

At the same time, we have to remember that the battle not over: Last month, Alabama lawmakers passed a law that effectively would allow private adoption and child placement agencies to discriminate against LGBTQ parents on a claim of "religious freedom."