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Wisconsin School Districts React to White House Guidance On Transgender Bathrooms

Rafael Ben-Ari, Fotolia

The Obama administration is taking a stance in the debate over rights for transgender people.   ­

On Friday, the federal departments of Education and Justice released guidance to public schools. They say transgender students should be allowed to use the bathroom aligned with their gender identity.

The opinion comes on the heels of broader controversial legislation from North Carolina requiring transgender people of all ages to use public restrooms corresponding to the gender listed on their birth certificate. 

Administration officials say their guidance is in line with Title IX, which prohibits discrimination on the basis of sex. 

During a press briefing Friday, White House press secretary Josh Earnest said President Barack Obama sees “bathroom bills” as a civil rights issue. 

“There is a question of, how can we ensure that the civil rights of every student is protected? There’s also a question of, how do we ensure that the dignity and safety of every student is protected? And the guidance that we have put forward would do both,” Earnest explained. “I think that’s why we’re going to see a lot of school administrators come forward and announce their intent to implement this guidance.”

Earnest added that he thinks many school leaders around the country are already writing these kinds of policies at their schools.

It’s a mixed bag in Wisconsin.

Districts across the state have been discussing transgender students’ access to public restrooms, even before the topic blew up on the national scene.

This past legislative session, Rep. Jesse Kremer (R-Kewaskum) drafted an unsuccessful bill that mirrored the contentious measure in North Carolina.

The Racine Unified School District board approved a new policy of its own regarding bathrooms in schools earlier this year. It allows students to request to use private facilities, if they’re uncomfortable using the bathroom or athletic locker room corresponding to the gender on their birth certificate.

Superintendent Lolli Haws says district leaders are proud of their work to “ensure positive and supportive environments.”

Buildings in the nearby Kenosha Unified School District operate under a much different policy. And Kenosha is in the middle of a legal battle regarding restrooms right now.

"They really need to get with the times and treat all their students fairly."

It started when Kenosha teen Ash Whitaker, a transgender student who identifies as male, claimed he’d been barred from using the boys’ restroom. Legal staff at the Transgender Law Center, a national group based in California, sent a letter to Kenosha Unified, threatening legal action on Whitaker’s behalf.

But the district refused to change its policy. Since then, the Transgender Law Center has filed a complaint with the U.S. Department of Education’s Office of Civil Rights.

“They essentially said they did not agree that Title IX applies to transgender students in this way,” explains Ilona Turner, legal director for the Transgender Law Center.

Students at Kenosha's Tremper High School have rallied in support of Whitaker. An online petition demanding the district adopt a policy allowing transgender students to use the restroom matching the gender on their birth certificate has already garnered thousands of signatures. 

Ilona Turner says she hopes the feds’ action will affect the way Kenosha Unified treats transgender students. 

“We’re hoping that this will finally make them recognize that this is the law, this is their legal obligation, and they really need to get with the times and treat all their students fairly,” she says.

A spokesperson for Kenosha Unified said district leadership is aware of the Obama administration’s guidance. In a statement, the school district’s lawyer says ultimately, it’s up the U.S. Supreme Court to weigh in on the issue:

"The Department of Education's...letter is not law; it is the Department's interpretation of the law. The position taken by the Department is consistent with its previous arguments to various federal courts across the country. Some courts have recognized the Department's view as being correct, others have not. The federal court of appeals that governs Wisconsin has not yet weighed in on the issue."

In a statement, state superintendent Tony Evers said educators have an obligation to ensure both safety and equal opportunity for students. And, he added that he has “no doubt” conversations around this issue are best conducted at the local level. 

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