ASH WHITAKER

Ash Whitaker is shown in this photo from April 2016.

The Kenosha Unified School Board has settled a lawsuit with a transgender former student who said the district discriminated against him, including monitoring trips to the boys restroom.

The board voted 5-2 Tuesday night on the $800,000 settlement in the case of Ash Whitaker, a former Tremper High School student who graduated in June.

Whitaker, born a female, identifies as a male. He filed the suit alleging staff had monitored him, making him wear wristbands singling him out from other students.

Voting in favor of the settlement were School Board President Tamarra Coleman and board members Mary Snyder, Daniel Wade, Rebecca Stevens and Mike Falkofske. Casting dissenting votes were board members Gary Kunich and Tony Garcia.

In August, the district filed a petition to the U.S. Supreme Court, asking that it overturn a 7th U.S. Circuit Court of Appeals ruling in May, which had upheld U.S. District Court Judge Pamela Pepper’s injunction allowing Whitaker to use male-only restrooms at Tremper. While he was attending the school, the injunction allowed him to use boys restrooms throughout his senior year.

The settlement withdraws the district’s petition to the Supreme Court.

Whitaker reacts

Whitaker, in a statement through his attorneys, expressed relief and empowerment that his case has been settled. He was not at the meeting.

“I am deeply relieved that this long, traumatic part of my life is finally over and I can focus on my future and simply being a college student,” said Whitaker, who is currently a freshman at the University of Wisconsin-Madison, where he plans to major in biomedical engineering. “Winning this case was so empowering and made me feel like I can actually do something to help other trans youths 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.”

According to the district’s attorney Ron Stadler of the Milwaukee-based firm Mallery and Zimmerman, $650,000 of the total settlement would go toward attorneys’ fees and the remaining proceeds to Whitaker.

The settlement also permits Whitaker to use the men’s restroom when returning to the Kenosha Unified campus as an “alumnus or a community member, which the district had done while he was a student.”

According to the attorney, the consent judgement does not, however, apply to other individuals beyond Whitaker.

Costs a key factor

Stadler said the monetary portion of the settlement agreement was approved by the district’s insurance company in light of mounting legal costs and the risk of potential exposure to several million dollars in costs if the case on both sides were to have continued over the the next few years.

The district’s insurers would pay out the $800,000. The only taxpayer funds to be expended will be $25,000 deductible to the insurance company.

“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,” Stadler said following the board’s vote. “So, it becomes a real economic decision in terms of balancing risks and the downside of being given an adverse decision.”

Stadler said that while he believed the district could have succeeded at the highest court level, the monetary and insurance risks weighed heavily.

“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,” he said. “The attorneys’ fees drive it.”

The 7th Circuit Court of Appeals issued a decision upholding the injunction in a ruling for the first time by any federal appeals court that transgender students are covered under the term “sex discrimination.” Kenosha Unified had sought to have the highest court review the legal issues, but such requests are rarely granted.

Stadler said the settlement was reached following two non-binding mediation sessions, Oct. 31 and Nov. 22, with communications between both sides’ attorneys through the end of the year.

District denied allegations

The lawsuit brought by Whitaker alleged that Unified administrators directed school staff to monitor Whitaker’s restroom use and proposed making him wear green wristbands so staff could recognize him.

Stadler said the district has “strongly denied” the allegations and at no point in the suit did Whitaker submit evidence to substantiate his claims. The district, he said, has maintained that Whitaker was being treated consistently with a procedure that was legal.

Whitaker’s attorneys said the precedent set in the 7th Circuit was conclusive.

The 7th Circuit’s decision held that “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity . . . violates Title IX” and that subjecting transgender students “to different rules, sanctions and treatment than non-transgender students” also violates federal law.

“The precedent in the 7th Circuit is definitive: schools cannot single students out because they are trans. Period,” said Kris Hayashi, executive director of Transgender Law Center, which represented Whitaker, along with civil rights firm Relmean, Dane & Colfax PLLC.

“This settlement sends the clear message to all school districts that discriminating against transgender students is against the law and harms students who simply want to go to school,” said Joseph Wardenski of Relman, Dane & Colfax PLLC, which represented Whitaker. “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.”

Board members react

Kunich said he could not vote in favor of the settlement.

“I understand from the financial point of view based on what our insurance carrier said...I understand that that is a key part of that,” he said. “But my issue with settling this (is) we aren’t settling anything.”

He said the law has not changed and the district has not heard from the U.S. Supreme Court.

“This opens us up to additional lawsuits and additional costs and I realize we have two issues. We have the civil rights argument on one side and the privacy rights on the other,” he said. “I want the Supreme Court to settle this once and for all, not just for our district, but for other districts.”

Stevens said that if Kenosha Unified did not settle the matter, then the district would risk spending more of the taxpayers’ money. She said the district also needs to move forward.

She said she wants the district to start looking at what it can do “proactively” and, with guidance, go through processes that protect the district from similar actions in the future.

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