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Kenosha Unified School District Settles Transgender Lawsuit

By D|K’s School and Higher Education Team

As reported by media on January 9, 2018, the Kenosha Unified School District announced that it plans to withdraw its petition for certiorari based on a settlement in the transgender case Whitaker v. Kenosha Unified School District.

As background, on May 30, 2017, the Seventh Circuit Court of Appeals reaffirmed protection for transgender students under the theory of sex stereotyping. The student, Ashton Whitaker, who was born a female but identifies as male, filed the lawsuit against the Kenosha Unified School District, alleging that staff had monitored him in a discriminatory manner, singled him out from other students, and prevented his use of the male bathrooms causing him harm. The Seventh Circuit Court of Appeals sustained the District Court’s grant of a preliminary injunction based on sex stereotyping and gender identity. On August 25, 2017, the Kenosha Unified School District filed a petition with the U.S. Supreme Court, asking that it overturn the Seventh Circuit Decision.

The reported terms of the January 9, 2018 settlement between the Kenosha Unified School Board and the former student, Ashton Whitaker, include an $800,000 monetary settlement and withdrawal of the District’s petition to the U.S. Supreme Court. The School District’s attorney advised media that the decision to settle was weighed in light of the mounting legal costs and litigation risk. The District and Whitaker participated in two mediations prior to the settlement.

As a result, the U.S. Supreme Court will not consider the Seventh Circuit Court of Appeals decision upholding the District Court’s grant of a preliminary injunction based on gender identity. That decision, which ordered the School District to allow the transgender student to use the restroom of the gender he identified with, the boys’ restroom, stands. In light of the Seventh Circuit’s prior rulings on this injunction and prior decisions involving sex stereotyping, districts should be careful not to act in a manner which could be viewed as sex stereotyping when faced with transgender issues.

For additional information on this case, please see our update from: August 24, 2017.

If you have any questions, please contact your Davis|Kuelthau, s.c. attorney or the related practice group chair here.