United States District Court, E.D. Wisconsin
ASHTON WHITAKER, a minor, by his Mother and next friend, MELISSA WHITAKER, Plaintiff,
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS, in her official capacity As Superintendent of the Kenosha Unified School District No. 1, Defendants.
DECISION AND ORDER GRANTING IN PART MOTION FOR
PRELIMINARY INJUNCTION (DKT. NO. 10)
PAMELA PEPPER United States District Judge
19, 2016, the plaintiff, Ashton Whitaker, filed this action
against the defendants, Kenosha Unified School District and
Sue Savaglio-Jarvis, in her official capacity as the
Superintendent of the Kenosha Unified School District. Dkt.
No. 1. In his complaint (amended on August 15th), the
plaintiff alleges that the treatment he received at Tremper
High School after he started his female-to-male transition
violated Title IX, 20 U.S.C. §1681, et seq., and the
Equal Protection clause of the Fourteenth Amendment. Dkt.
Nos. 1, 12. On August 15, 2016, the plaintiff also filed a
motion for a preliminary injunction. Dkt. No. 10. The
defendants filed a motion to dismiss the next day. Dkt. No.
Both motions were fully briefed by August 31, 2016. Dkt. Nos.
11, 15, 17, 19, 21, 22. Following oral arguments on the
motions on September 6, 19 and 20, the court issued an oral
ruling denying the defendants' motion to dismiss. Dkt.
No. 28. See also, Dkt. No. 29 (order denying motion
to dismiss). For the reasons stated at the September 20, 2016
hearing, and supplemented here, the court grants in part the
plaintiff's motion for preliminary injunction. Dkt. No.
plaintiff, Ash Whitaker, is a student at Tremper High School,
a public high school in the Kenosha Unified School District
(KUSD). Dkt. No. 12 at ¶6. The plaintiff's mother,
Melissa Whitaker, brought this action as his next friend.
Id. at ¶7. She is also a high school teacher at
plaintiff's birth certificate identifies him as female,
and he lived as a female until middle school. Id. at
¶21. Around seventh grade, in late 2013, the plaintiff
asked his mother about treatment for transgender individuals.
Id. at ¶¶21-23; Dkt. 10-2 at 17. He later
was diagnosed by his pediatrician with Gender Dysphoria. Dkt.
No. 12 at ¶¶15, 25. “Gender Dysphoria is the
medical and psychiatric term for gender incongruence.”
Dkt. No. 10-2 at 6. Individuals with gender dysphoria suffer
extreme stress when not presenting themselves and living in
accordance with their gender identity. Id. Treatment
for gender dysphoria consists of transitioning to living and
being accepted by others as the sex corresponding to the
person's gender identity. Dkt. No. 12 at ¶17. To
pursue medical interventions, a person with gender dysphoria
must live in accordance with their gender identity for at
least one year. Id. at ¶18. If left untreated,
gender dysphoria may result in “serious and
debilitating” psychological distress including anxiety,
depression, and even self-harm or suicidal ideation. Dkt. No.
10-2 at 6-7; Dkt. No. 12 at ¶15. The plaintiff currently
is under the care of a clinical psychologist, and began
receiving testosterone treatment in July 2016. Id.
the 2013-2014 school year, the plaintiff began telling close
friends that he was a boy, and transitioning more publicly to
live in accordance with his male identity. Id. at
¶23. At the beginning of his sophomore year (Fall 2014),
the plaintiff told all of his teachers and peers about his
transition, and asked that they refer to him using male
pronouns and by his male name. Id. at ¶24. In
the spring of 2015, the plaintiff asked to be allowed to use
the boys' restrooms at school. Id. at ¶27.
The school administrators denied the request, stating that
the plaintiff was allowed to use only the girls' restroom
or the single-user, gender-neutral restroom in the school
office. Id. The plaintiff did not want to use the
office restroom because it was far from his classes and only
used by office staff and visitors. Id. at ¶28.
Consequently, the plaintiff avoided drinking liquids, and
using the bathroom at school for fear of being stigmatized as
different. Id. at ¶29. During his sophomore
year, the plaintiff experienced vasovagal
syncope, stress-related migraines, depression,
anxiety and suicidal thoughts. Id. at ¶31.
learning, over the summer of 2015, that the U.S. Department
of Justice had concluded that transgender students have the
right to use restrooms in accordance with their gender
identity, the plaintiff began using the male-designated
bathrooms at school starting his junior year, September 2015.
Id. at ¶35. He used the male bathroom without
incident until late February 2016. Id. at
¶36-37. Despite the lack of any written policy on the
issue, the school informed the plaintiff, in early March,
that he could not use the boys' restroom. Id. at
38. Nevertheless, to avoid the psychological distress
associated with using the girls' restroom or the
single-user restroom in the office, the plaintiff continued
to use the boys' restrooms when necessary. Id.
plaintiff and his mother met with an assistant principal and
his guidance counselor on or about March 10, 2016 to discuss
the school's decision. Id. at 44. The assistant
principal told him that he could use only the restrooms
consistent with his gender as listed in the school's
official records, and that he could only change his gender in
the records only if the school received legal or medical
documentation confirming his transition to male. Id.
the plaintiff's mother argued that the plaintiff was too
young for transition-related surgery, the assistant principal
responded that the school needed medical documentation, but
declined to indicate what type of medical documentation would
be sufficient. Id. at 45. The plaintiff's
pediatrician sent two letters to the school, recommending
that the plaintiff be allowed access to
(last visited September 21, 2016).
boys' restroom. Id. at 46. Despite lacking a
written policy on the issue, id. at ¶60, the
school again denied the plaintiff's request, because he
had not completed a medical transition, but failing to
explain why a medical transition was necessary. Id.
plaintiff generally tried to avoid using the restroom at
school, but when necessary, he used the boys' restroom.
Id. at 48. Consequently, the school directed
security guards to notify administrators if they spotted
students going into the “wrong” restroom.
Id. at ¶56. The school re-purposed two
single-user restrooms, which previously had been open to all
students, as private bathrooms for the plaintiff.
Id. at ¶61. The plaintiff refused to use these
bathrooms, because they were far from his classes and because
using them would draw questions from other students.
Id. Despite several more confrontations with the
school administration, id. at ¶¶49, 51,
54, the plaintiff continued to use the boys' restroom
through the last day of the 2015-16 school year. Id.
plaintiff started his senior year of high school on September
the date of oral argument on this motion (September 20,
2016), the school still refused to allow him to use the
boys' restroom, and the plaintiff continued to avoid the
restrooms generally, using the boys' restroom when
plaintiff seeks the following relief: an order (1) enjoining
the defendants from enforcing any policy that denies the
plaintiff's access to the boys' restroom at school
and school-sponsored events; (2) enjoining the defendants
from taking any formal or informal disciplinary action
against the plaintiff for using the boys' restroom; (3)
enjoining the defendants from using, causing or permitting
school employees to refer to the plaintiff by his female name
and female pronouns; (4) enjoining the defendants from taking
any other action that would reveal the plaintiff's
transgender status to others at school, including the use of
any visible markers or identifiers (e.g. wristbands,
stickers) issued by the district personnel to the plaintiff
and other transgender students. Dkt. No. 10 at 2.
discussed in the oral arguments before the court, this
decision only addresses the first two requests; the court
denied the orally denied the fourth request without prejudice
at the September 19, 2016 hearing, and the court defers
ruling on the third request to allow counsel for the
defendants to discuss with his client recent developments,
such as the plaintiff's legal name change and this
court's denial of the defendants' motion to dismiss.