Another day, another enormous fuck you from the U.S. judicial system to Donald Trump and the Republican Party; this time in a landmark (and potentially) sweeping victory for trans people. Yesterday, the 7th Circuit Court of Appeals unanimously upheld a lower court injunction in favor of Wisconsin trans student Ash Whitaker, invoking both Title IX and the Equal Protection Clause of the 14th Amendment to guarantee Whitaker access to the bathroom that matches his gender identity at Tremper High School in the Kenosha Unified School District. It’s an almost shocking but very welcome decision, especially after the Supreme Court punted Gavin Grimm’s case earlier this year.
The three-judge 7th Circuit panel wrote that the Kenosha Unified School District “has failed to provide any evidence of how the preliminary injunction will harm it, or any of its students or parents” while also noting that “the harms to Ash are well-documented and supported by the record.” Which is to say that a federal court agreed with a lower court ruling that trans people are the ones who are hurt by “bathroom bills,” and the argument that it’s harmful to let trans people use the bathrooms that match their gender identity is “sheer conjecture.”
The 7th Circuit’s ruling has the potential to create sweeping change for trans people in the United States. Gavin Grimm’s case asked SCOTUS to rule that Title IX applies to trans people. The 4th Circuit had already ruled in Grimm’s favor, but they did so under the Obama administration’s Department of Justice guidelines. Between the 4th Circuit’s ruling and SCOTUS’ decision to pass on hearing Grimm’s case, Trump was elected and chose to roll back Obama’s trans protections.
Whitaker’s case, however, did not rely on Obama’s DOJ guidelines; instead it directly asked the court to determine whether or not trans students are protected under federal law. According to the 7th Circuit’s ruling the answer is doubly yes: Whitaker is protected under Title IX, which applies to all schools that receive federal funding, and he is protected under the Equal Protection Clause of the 14th Amendment. Vox breaks it down thusly:
If existing federal law and the 14th Amendment shield trans people from discrimination, then it’s not just Whitaker’s rights that are protected here, but all trans students’. And if bans against sex discrimination in particular apply to trans people, then it’s not just students’ rights that are protected, but all trans people who face discrimination in other settings where sex discrimination is banned — so not just schools, but the workplace and housing as well.
In a statement to the Transgender Law Center, Whitaker said he was “thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school” because he just wants to focus on his classes, his friendships, and applying to college.
It seems inevitable that Whitaker’s case will work its way up to the Supreme Court. With any luck, the 7th Circuit will become as hated by Trump and the GOP as the 9th, which most recently decimated Trump’s travel ban. For now, this is one of the biggest judicial victories for trans people in U.S. history.
Before you go! It takes funding to keep this publication by and for queer women and trans people of all genders running every day. We will never put our site behind a paywall because we know how important it is to keep Autostraddle free. But that means we rely on the support of our A+ Members. Still, 99.9% of our readers are not members. A+ membership starts at just $4/month. If you’re able to, will you join A+ and keep Autostraddle here and working for everyone?