A federal Title IX lawsuit filed in Wisconsin on Tuesday alleges that the Kenosha Unified School District instructed guidance counselors to have Ash Whitaker, a 16-year old transgender boy, and “any other transgender students at the school” wear “bright green wristbands” so that the school could “more easily monitor and enforce [their] restroom usage.”
Ash Whitaker made headlines this year when he was allowed to run for prom king after initially being denied the opportunity to run. His mother, Melissa, is a co-plaintiff in the suit and a teacher at his school.
Kenosha Unified School District spokeswoman Tanya Ruder was not immediately available to comment on the suit or the Whitakers’ claims.
As the Journal Sentinel reported, the Whitakers had filed an earlier complaint with the U.S. Department of Education’s Civil Rights Division that was withdrawn ahead of this week's lawsuit.
According to the lawsuit, Ash Whitaker came out as transgender to his parents in the eighth grade and to “a few close friends” during to his freshman year. Then, at the start of his sophomore year he formally came out to “all of his teachers and peers.” The Whitakers say that the trouble began later that year.
In the spring of 2015, the 36-page complaint alleges, school administrators at George Nelson Tremper High School denied the Whitakers’ request to allow Ash to use the boys’ bathroom, instructing him to either use the girls’ room or a single-occupant restroom in the school office instead.
Ash claims that the office bathroom was “far out of the way from most of his classes” and that he didn’t want to use it anyway because “he would be segregated from his classmates and further stigmatized for being ‘different.’” According to the complaint, this left Ash feeling “overwhelmed, helpless, hopeless, and alone.”
It is not uncommon for transgender students to feel depressed—and even suicidal—after being denied permission to use the appropriate bathroom. A February 2016 study in the The Journal of Homosexuality analyzed data from the Transgender Discrimination Survey and found that restricting transgender college students access to restrooms or campus housing “had a significant relationship to [their] suicidality, even after controlling for interpersonal victimization.”
The Whitakers claim that Ash then “largely avoided using any restrooms at school for the rest of that school year” and even “restricted his liquid intake,” which worsened his migraines and his symptoms of vasovagal syncope, a fainting condition.
This tactic would not be unique to Ash Whitaker. According to preliminary findings from the new U.S. Transgender Survey, nearly a third of the over 27,000 total respondents have avoided drinking or eating to stay out of bathrooms in the last year. Eight percent have suffered a UTI or another kidney-related medical issue as a result.
After the bathroom refusals at home, the Whitakers claim that Ash was then denied his request to room with other boys during his school orchestra group’s July 2015 trip to Europe and was indeed “forced to share a room with a girl.”
But after hearing about the case of Gavin Grimm, the Virginia transgender boy at the center of a bathroom case that would eventually be appealed to the U.S. Supreme Court, Ash says he decided to begin using the boy’s room both in Europe and back at Tremper High during his junior year.
The Whitakers claim that he did so “without any incident” for seven full months before school administrators cracked down again and presented the same ultimatum: girl’s room or office restroom. The complaint alleges that the conflict between the Whitakers and the district only escalated from there, with school officials repeatedly using Ash’s birth name, punishing him for continuing to use the boy’s room, and denying his housing request on another orchestra trip.
But the most alarming allegations in the suit are claims that the school essentially created a surveillance program to control Ash’s bathroom use. Melissa, who taught at Tremper, claimed that school administrators sent an email to security guards in April 2016 “instructing them to notify administrators if they spotted any students who appear to be going into the ‘wrong’ restroom.”
The next month, Melissa claims, Ash’s guidance counselor introduced the troubling “bright green wristband practice” for transgender students. The Whitakers believe this policy was aimed directly at Ash but they were allegedly told that it would apply to “any other transgender students at the school” as well.
“[Ash] felt like his safety would be even more threatened if he had to wear this visible badge of his transgender status,” the lawsuit alleges.
According to the Whitakers, the alleged green wristband policy may still be in place at Tremper High School for incoming transgender students. The Daily Beast could not confirm whether this was the case. Ash is planning to return to school for his senior year in September.
“I worry about how I’m going to navigate the demands of senior year if I can’t even go to the bathroom without worrying I’m being watched,” he said in a statement released by the Transgender Law Center, which co-filed the lawsuit.
The Whitakers’ lawsuit comes after a Virginia school district appealed Gavin Grimm’s bathroom case to the U.S. Supreme Court following a Fourth Circuit Court of appeals ruling in Grimm’s favor.
It also follows May 2016 guidance from the Justice Department and the Department of Education instructing school districts to allow transgender students to use the proper bathrooms—largely perceived as a direct response to North Carolina’s discriminatory anti-LGBT law, which restricts public restroom usage based on birth certificates. At least 21 states are now suing the federal government over this guidance.
But according to the Department of Education, the Fourth Circuit, and the Whitakers’ lawsuit, these restrictions clearly violate Title IX’s ban on sex discrimination. The Whitakers claim that Ash himself raised the issue of his apparent Title IX protections in April in a conversation with a school district official who then denied that the law applied to him. When Ash asked the official to explain how she thought Title IX worked, she allegedly refused, saying something like, “I don’t think I’m going to give you any reasons.”