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How a court decided bathroom rights outrank privacy rights

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A Wisconsin school district originally told a transgender student he couldn't use the bathroom because it would violate the privacy rights of all the other males using the restroom. (AP Photo/Toby Talbot, File)

A Wisconsin school district is paying almost $1 million in settlement to a transgender student in response to a discrimination lawsuit. Though Ash Whitaker graduated high school in June 2017, the student sued the school district — Kenosha Unified School District — because they told him he could not use the boys restroom, because he was biologically female.

Whitaker’s lawsuit is extraordinary in itself. So is the 7th Circuit’s opinion, which relies on Title IX to rule in his favor. And of course, so is the school district’s gigantic payout.

The school district originally told Whitaker he couldn’t use the bathroom because it would violate the privacy rights of all the other males using the restroom. Whitaker sued under Title IX of the Education Amendment Acts and filed for preliminary injunctive relief. The denial of the men's restroom, Whitaker alleged, “exacerbated his vasovagal syncope, which rendered [Whitaker] susceptible to fainting or seizures if dehydrated, and that the situation caused him educational and emotional harm, including suicidal ideations.” The district court granted Whitaker the preliminary injunction and the Seventh Circuit upheld it.

It’s extraordinary that the 7th Circuit ruled in Whitaker’s favor based on Title IX sex discrimination when Whitaker is claiming orientation over sex. Whitaker is born female and merely “identifies” as male. To make this case even more extraordinary, the school district was forced to settle not because they believed they were truly liable for anything, but because they are a school district and they were going broke. As the district's attorney Ron Stadler put it:

“To this point, [Whitaker’s] claimed fees were $1.7 million, so we estimated if we went up to the Supreme Court, and/or back down to trial court to try the case and go through anything, that their fees would be somewhere between $4 million and $5 million. So, it becomes a real economic decision in terms of balancing risks and the downside of being given an adverse decision. I think we have an excellent argument, but if you look at it in terms that you’ve got these escalating costs, you’ve got a good argument, but not an absolute argument.”

Whitaker told the Transgender Law Center, “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.”

Unfortunately, as lovely as this sounds, Whitaker misses the point of his own lawsuit altogether. Just because a school district told him he couldn’t invade the privacy of other students does not mean he was not loved, accepted, or allowed to live authentically. It simply means his right to use the bathroom in whatever bathroom he felt like that day should not have trumped the rights of all the other boys who wanted to use the restroom.

And yet now, with the outcome of this case, it did. Because some activist judges are applying sexual orientation classification under sex discrimination under Title IX, when they should not be doing so.

Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.

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