The Kenosha Unified School District (KUSD) has agreed to pay Ash Whitaker $800,000 for forcing him and other transgender students to wear armbands designating their birth gender. The armbands were intended to segregate them from other students and make them more easily identifiable when they entered areas of public accommodations I.E. the restroom.
The complaint in Whitaker v. Kenosha Unified School District No. 1 Board of Education alleges that KUSD’s policy of denying Ash access to the boys’ restrooms and other discriminatory actions—including school administrators’ insistence on using Ash’s birth name and female pronouns, the school’s repeated isolation of Ash from his peers on overnight school trips, and a proposed policy to require transgender students to wear green wristbands or stickers—violate Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the U.S. Constitution.
Whitaker graduated high school in June 2017, days after the Seventh Circuit Court of Appeals ruled in favor of his challenge against the school district, and upheld a lower court’s decision allowing him to use the boys’ bathroom for his senior year.
Last September U.S. District Judge Pamela Pepper ruled against the districts transgender policy reading her decision aloud from the bench, holding that Ash would continue to suffer irreparable harm if KUSD continued to deny him access to the boys’ restroom during his senior year. In her decision, Judge Pepper explicitly recognized the emotional, psychological and physical harm Ash has endured under KUSD’s discriminatory policy and the importance to transgender people of being treated in accordance with their gender identity.
As part of the settlement, KUSD withdrew its US Supreme Court appeal challenging that decision, according to the Transgender Law Center, which represented Whitaker in the case. The settlement also permits Whitaker to use the men’s restroom if he returns to campus as an alumnus or community member. However, the judgement does not apply to anyone else besides Whitaker.
The school board voted 5–2 Tuesday on the $800,000 settlement with Whitaker, Kenosha News reported.
Of the $800,000, approximately $650,000 will go towards Whitaker’s attorneys’ fees and around $150,000 will go to Whitaker, an attorney for KUSD, Ronald Stadler, told BuzzFeed News on Wednesday.
“I am deeply relieved that this long, traumatic part of my life is finally over and I can focus on my future and simply being a college student,” said Ash in a statement on the Transgender Law Center blog. Ash is currently a freshman at the University of Wisconsin-Madison, where he plans to major in biomedical engineering. “Winning this case was so empowering and made me feel like I can actually do something to help other trans youth live authentically. My message to other trans kids is to respect themselves and accept themselves and love themselves. If someone’s telling you that you don’t deserve that, prove them wrong.”
The Seventh Circuit decision in Ash’s case marked the first time a federal court of appeals ruled unequivocally that transgender students are protected from discrimination under both Title IX and the Constitution. That ruling, which affirmed a lower court order enjoining KUSD officials from interfering with Ash’s ability to use boys’ restrooms during his senior year, established that both federal law and the U.S. Constitution require the equal treatment of transgender students at school. The Seventh Circuit’s decision held that “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity . . . violates Title IX” and that subjecting transgender students “to different rules, sanctions and treatment than non-transgender students” also violates federal law.
Kris Hayashi, executive director of Transgender Law Center, which represented Ash along with co-counsel, said, “The precedent in the Seventh Circuit is definitive: schools cannot single students out because they are trans. Period.”