Milwaukee---A transgender Tremper High School student will be able to use the bathroom of his choice--at least temporarily.
In granting a preliminary injunction Tuesday, U-S District Court Judge Pamela Pepper prohibited Kenosha Unified from attempting to keep Ash Whitaker out of boys' bathrooms. The district had wanted him to either use bathrooms designated for girls or single-occupancy restrooms, options that Whitaker attorney Joe Wardenski argued leads to stigmatization. In addition, the few one-seaters that exist are often times out of the way, he said.
Although he now identifies as a boy, Whitaker's birth certificate has him marked as a girl.
During a hearing that preceded the ruling, Wardenski argued that his client suffered from stress, anxiety and a diminished ability to concentrate because the district refuses to recognize his gender identity. Whitaker, he said, tries to avoid using school bathrooms altogether, something that aggravates a medical condition that requires him to drink large amounts of water daily.
"There doesn't seem to be any question that Ash has already suffered harm," said Judge Pepper in assessing the interests of the student against the district. To the contrary, Pepper indicated that she sees little harm to the district in allowing Whitaker to use boys' restrooms.
As for a potential public outcry, Pepper said: "They're entitled to have strong views."
Speaking to reporters afterward, Kenosha Unified attorney Ron Stadler said he plans to immediately file an appeal with the 7th Circuit in Chicago, and will ask Judge Pepper to stay her ruling.
In court Tuesday, Stadler argued that the law doesn't allow students to pick their own gender. "There is no support in the law for that proposition," he said. Stadler also argued that Whitaker's anxiety and inability to focus could be caused by issues other than bathroom usage.
Stadler also raised potential privacy concerns. But if Whitaker's male classmates object to sharing a bathroom with Whitaker, they can leave and duck into another one, Pepper noted.
At the end of her ruling, Pepper acknowledged that the U.S Supreme Court has weighed in to a limit extent on a comparable case, staying a ruling that would've given victory to a transgender student from Virginia. Pepper said the two-paragraph stay did not offer a clue on the justices' thinking, and that she issued her injunction based on the facts and legal arguments specific to the case currently in question.
In an email sent later in the day, Wardenski said he informed Whitaker and his mother of Tuesday's ruling and he said they were "thrilled."
Stadler, meanwhile, predicted that the school district will eventually prevail on appeal.
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