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KENOSHA, Wis. – The latest affirmation of so-called transgender bathroom rights comes in a ruling issued by a Wisconsin federal judge granting a girl pretending to be a boy exclusive access to male restrooms in schools.

A decision passed down Tuesday by U.S. District Judge Pamela Pepper, an appointee of Pres. Obama, declared Ashton Whitaker, a senior at Tremper High School in Kenosha, Wisconsin, may use the restroom that corresponds with her assumed gender while the litigation is pending. The court order comes only a day after the judge rejected a motion filed by the school district to have the case dismissed entirely, disregarding the argument from Tremper administrators that the school board has absolute control over the creation of its own policies.

Remarking on the case presented by attorneys backing Whitaker, holding that the school policy would cause the transgender student irreparable harm, Pepper maintained there is “no question that [Ashton] has already suffered harm and has had physical repercussions from the policy as well as emotional repercussions.”Joseph Wardenski, who represents Whitaker, cited testimony from the teenager alleging that the bathroom policy puts her in danger of a “lifelong lack of well-being.”

Representing the Kenosha school district is attorney Ronald Stadler, who challenged the prosecution’s claim that an individual has a “unilateral right to declare one’s sex.”

“There is simply no support in the law for that proposition,” Stadler remarked, noting that both he and the district intend to appeal the judge’s decision.

The suit had been filed in July with the U.S. District Court in Milwaukee by Whitaker and her mother, a teacher at the school, against the Kenosha school district and Tremper superintendent Sue Savaglio-Jarvis for purportedly refusing on multiple occasions to “recognize or respect [Whitaker’s] gender identity” and allegedly taking “a series of discriminatory and highly stigmatizing actions against [her].”

Among the so-called discriminatory actions cited by the lawsuit are barring Whitaker from using the male restrooms, using the “incorrect” pronouns when referring to the student and instructing Whitaker to room with other female students on overnight trips affiliated with the high school. “These lawsuits are about the equal treatment of transgender students and making sure they are treated just like every other student in their schools,” argued a staff attorney with the California-based law firm representing Whitaker.

The pending litigation is not the first time the transgender student has made headlines. In April, the school overturned an earlier decision barring Whitaker from running for prom king after facing backlash from the school community.

“I am trying to run for Prom King at my school, but am unable to due to my school’s resistance and insistent discrimination against my transgender identity,” read a statement from Whitaker in an online petition, which garnered over 7,600 signatures in support of the transgender student. An update was posted following the reversal of the school board ruling, with Whitaker labeling the move a “victory.”

“But the battle is only half completed,” she continued. “My school still refuses to respect and acknowledge my gender identity in respect to restroom usage.”

The ongoing court battle in Kenosha mirrors those occurring across the country, particularly in its usage of Title IX, a federal law which forbids discrimination based on sex from any educational programs that receive federal funds.

The question of Title IX’s applicability with regard to gender identity is currently before the U.S. Supreme Court as part of a petition filed by a Virginia school board ordered by a lower court ruling to allow a female transgender student to use the boy’s restrooms and locker rooms.

The use of “sex” to refer to “gender identity” in the language of Title IX has been adopted by the Obama administration in its sweeping mandate issued in May demanding all public schools allow unlimited bathroom access to transgender students. In his August ruling blocking the application of the federal order, U.S. District Judge Reed O’Connor in Austin, Texas asserted the meaning of the word “sex” in the Title IX regulation is “not ambiguous.”

“It cannot be disputed that the plain meaning of the term sex as used … following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth,” O’Connor wrote.

James Muthoka
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