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Relman, Dane & Colfax Secures Two Early Victories for Wisconsin Transgender Student

A Wisconsin federal judge has issued an injunction requiring a public school district to permit Ashton ("Ash") Whitaker, a 17-year-old transgender boy, to use the boys' restrooms at his high school. The historic order is only the second of several such injunctions issued by federal courts against public K-12 school districts.

Relman, Dane & Colfax and the Transgender Law Center filed a complaint on Ash's behalf in July 2016, after school officials barred him from using those restrooms. The complaint alleges that this and other actions by the Kenosha Unified School District (KUSD), including school staff's continued use of his female birth name and feminine pronouns, his school's refusal to allow Ash to run for prom king, and a proposal that Ash and other transgender students be made to wear green wristbands to identify themselves, violate Title IX of the Education Amendments of 1972 and the Equal Protection Clause.

The injunction bars KUSD from enforcing any policy that would deny Ash access to boys' restrooms, monitoring his restroom use, or disciplining him for using the boys' restrooms at school or school-sponsored trips. The ruling by Judge Pamela Pepper of the U.S. District Court for the Eastern District of Wisconsin came one day after she announced her decision to deny a motion to dismiss filed by KUSD. On October 3, Judge Pepper denied KUSD's motion to stay the injunction pending appeal. The school district has filed a notice of appeal to the U.S. Court of Appeals for the Seventh Circuit. Briefing on that appeal is expected to begin this fall.

Central to the granting of the injunction and the denial of KUSD's motion to dismiss was Judge Pepper's finding that Ash's complaint stated valid claims under Title IX of the Education Amendments of 1972 and the Equal Protection Clause. Judge Pepper determined that Ash's factual allegations supported claims that he was treated differently based on sex and was subjected to sex stereotyping. Because of Judge Pepper's injunction, Ash has been able to use boys' restrooms since September 22. Ash is thrilled to be able to focus on his classes, college applications, and after-school activities for the first time since last year.

Joseph Wardenski of Relman, Dane & Colfax presented oral argument on both motions. The case team also includes Michael Allen and Sasha Samberg-Champion of Relman, Dane & Colfax; Ilona Turner, Alison Pennington, Shawn Meerkamper, and Sasha Buchert of Transgender Law Center; and Robert Theine (Rock) Pledl of Pledl & Cohn, S.C.

Noteworthy Pleadings

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