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Financial Considerations Lead to Settlement in Whitaker Suit

A legal battle between a recently-graduated, Kenosoha Unified transgender student over restroom usage has ended in sort of a draw. 

The school board voted five to two Tuesday evening to support a settlement that has the district's insurance company paying Ash Whitaker's attorneys $650,000 and Whitaker himself $150,000.

There's no change in district policy. However, Whitaker will be allowed to use men's restrooms when returning to campus as an alumnus or a community member. Such was the case for Whitaker as a senior at Tremper as a result of court action. 

In 2016, Whitaker, then a student at Tremper High School, filed a federal lawsuit, claiming that the district's policy of requiring him to use either girls' restrooms or a unisex bathroom was discriminatory. In the suit, Whitaker claimed that he suffered from anxiety, depression and other physical and educational harms.    

Whitaker won a series of court battles that led the district's insurance company to appeal to the U-S Supreme Court, setting the stage for a possible landmark decision. 

But late last year, the two sides initiated a discussion that led to the settlement and the end of the appeal, according to the district's attorney, Rod Stadler. 

Continuing to pursue the challenge, Stadler said in a statement, could lead to "several million dollars" in additional exposure.  Any additional expenses would largely be borne by the district's insurance company because the district has a $25,000 deductible. That amount has already been paid.

Gary Kunich was one of two board members who voted against the settlement Tuesday night. "My issue with settling this is that we aren't settling anything," he said. "Our policies are still the same. The law has not changed. We have not heard from the Supreme Court. This opens us up to additional lawsuits."

Stadler said afterward that similar cases currently being litigated that could potentially wind up before the nation's high court to decide the issue once and for all, but that it's unlikely that any of the cases will reach the court in time for a decision this year. 

Whitaker himself is now a student at UW-Madison, Stadler said.

No one from Whitaker's side of the suit was present for Tuesday night's vote.  

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