Plaintiffs in District 211 transgender lawsuit say their case is different than Kenosha decision

Plaintiffs and defendants in the lawsuit over transgender students' access to bathrooms and locker rooms in Palatine-Schaumburg High School District 211 are debating how precedent-setting this week's ruling in a similar Kenosha, Wisconsin, case should be.

The federal 7th Circuit Court of Appeals' three-judge panel in Chicago unanimously upheld a lower court's order that a 17-year-old high school senior named Ashton Whitaker be allowed to use the boys bathroom at his Kenosha high school.

Whitaker was born female but identifies as male.

John Knight, director of the American Civil Liberties of Illinois' LGBT & HIV Project, said the Whitaker case provides “another compelling reason” the federal judge in the District 211 lawsuit should deny the plaintiffs' demands that transgender students be forced to use the gender-specific facilities of their birth sex.

“It clarifies that District 211 is not only free to allow transgender students to use the facilities that match their gender, but must do so,” Knight said. “It was already clear that the plaintiffs' motion must be denied, but Whitaker makes it even clearer. I can't see any significant differences that would justify a different result in the case against District 211.”

But Gary McCaleb, senior counsel for the Arizona-based religious freedom organization Alliance Defending Freedom, does.

Both his organization and the Chicago-based Thomas More Society are representing the plaintiffs in the District 211 lawsuit.

McCaleb said a key difference in the Kenosha case was a lack of direct evidence of privacy violation, whereas the District 211 suit presents 50 families as plaintiffs who believe their privacy has been violated.

“We have exactly what Kenosha did not have,” McCaleb said.

The judge presiding over the District 211 case previously made it clear the Kenosha ruling was one he was waiting on before proceeding with the District 211 case, McCaleb said. But he added that he believes the judge will be sensitive to the differences in the evidence between the two cases.

“I hope he says our case is very different and is distinguishable from Wisconsin,” McCaleb said.

He added that he expected the Kenosha case to go the way it did due to the panel of judges' “radically different” interpretation of the federal Title IX law intended to protect students from sex discrimination than what he has seen elsewhere. A basic argument of the District 211 lawsuit is that Title IX is not relevant to issues of gender identity.

Another difference between the two cases is that in Whitaker's, the school district was opposed to the student's use of the bathroom corresponding with his gender identity.

In the District 211 case, a group of parents and students sued the district for its agreement with the U.S. Department of Education allowing a transgender girl limited access to a girls locker room. The district also generally allows transgender students to use the bathrooms corresponding to their gender identities.

The ACLU of Illinois, which represents the transgender “Student A” in the lawsuit, was permitted to intervene in the District 211 case as a co-defendant of the school district and the federal departments of education and justice.

The District 211 lawsuit was filed in May 2016. Its next status hearing is set for July.

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