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(WB) An agreement was reached to withdraw a petition pending before the Supreme Court that could have established a nationwide rule on whether transgender kids are entitled to use school restrooms consistent with their gender identity.

The petition, filed by Kenosha School District in Wisconsin, sought to challenge a ruling from the U.S. Seventh Circuit Court of Appeals in favor of Ash Whitaker, a transgender high school student seeking to use the restroom consistent with his gender identity. It was the first-time ever a federal appeals court reached that decision.

As a condition of the settlement, the school district agreed to withdraw its petition before the Supreme Court seeking review of the Seventh Circuit ruling. The settlement, which remains subject to court approval, also requires the school district to allow Ash to use the boys’ room in the future should he return to campus as an alum.

Whitaker, who graduated from high school in June 2017 shortly after the Seventh Circuit issued its ruling, said in a statement he’s “deeply relieved” by the settlement.

“Winning this case was so empowering and made me feel like I can actually do something to help other trans youth live authentically,” Whitaker said. “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 agreement was reached between Kenosha School District and the San Francisco-based Transgender Law Center, which represented Whitaker.

Kris Hayashi, executive director of Transgender Law Center, said the agreement means the important Seventh Circuit precedent will be allowed to stand.

“The precedent in the Seventh Circuit is definitive,” Hayashi said. “Schools cannot single students out because they are trans. Period.”

Also as part of the settlement, the school district must pay $800,000 for the harm Ash experienced as a student and his reasonable attorneys’ fees and costs.

Other legal groups representing Whitaker were Relman, Dane & Colfax PLLC, a D.C.-based civil rights law firm and Robert Theine Pledl of McNally Peterson, S.C., based in Milwaukee, Wis.

Joseph Wardenski, an attorney with the civil rights law firm, Relman, Dane & Colfax PLLC, said in a statement the settlement “sends the clear message to all school districts that discriminating against transgender students is against the law.”

“We are pleased that KUSD decided not to needlessly drag this case through the courts any further, to compensate Ash for the concrete and avoidable harms he suffered, and to finally allow Ash to move on from this painful chapter of his life,” Wardenski said.

Representing Kenosha School District in the case was Ronald Stadler of the Milwaukee-based Mallery & Zimmerman, S.C.

Stalder said in a statement the consent decree doesn’t apply to individuals other than Whitaker.

Further, Stadler the vast majority of funds were paid by the school’s insurer; the only taxpayer funds spent by the district were its $25,000 deductible.

“KUSD has maintained all along that Whitaker was being treated entirely consistent with a procedure that, at the time the decision was made, was entirely legal under the law,” Stadler added. “Whitaker’s complaint contained many allegations, including that transgender students were required to wear ‘green wristbands’ and that Whitaker was singled out from other students. The district strongly denied such allegations and at no point in the litigation did Whitaker submit evidence to substantiate those disputed claims.”

Numerous courts have determined Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, requires schools to allow transgender students to use the restroom consistent with their gender identity. The Seventh Circuit ruling in the Whitaker case upheld a trial court decision in his favor, which prompted the school district to file a petition before the Supreme Court.

The Supreme Court has yet to make a nationwide ruling on the issue. Justices could have rendered a national clarification — either for or against transgender students — if they had decided to take up the school district’s petition.

It’s the second time an opportunity for the Supreme Court to issue a nationwide ruling has been withdrawn. Last year, the Supreme Court nixed consideration of lawsuit filed by transgender student Gavin Grimm, who sought to use the boys’ room at high school in Virginia.

The Supreme Court nixed consideration of the case after the Trump administration revoked Obama-era guidance assuring transgender kids access to school restrooms consistent with their gender identity under Title IX. The Education Department subsequently issued a memo saying discrimination and harassment of transgender kids could amount to sex discrimination, but federal law doesn’t necessarily apply to bathroom use.

Masen Davis, CEO of the LGBT group Freedom for All Americans, said in a statement the agreement was good news for transgender students.

“This settlement sends a clear message that schools are responsible for treating transgender students fairly and equally, without exception,” Davis said. “All students deserve to focus on their education, build meaningful friendships and memories, and live their most authentic lives while at school.”


— Chris Johnson, Washington Blade courtesy of the National LGBTQ Media Association.