A Trans Teen Explains Why He Took His School to Court (and Won)
On Ash Whitaker’s second to last day of high school, he learned that he had won a major civil rights case at a federal appeals court. Then he took an exam. In many ways, Whitaker, who lives in Kenosha, Wisconsin, was just a typical overachieving high schooler: He played in the school orchestra, participated in the National Honor Society, and performed with the drama club. But Whitaker is also trans—a fact that deeply concerned his school district and administrators, who barred him from the boys’ bathroom.
With the help of the Transgender Law Center, Whitaker sued his school district, arguing that it was violating his rights under Title IX and the 14thAmendment’s Equal Protection Clause. In September, a federal judge agreed and blocked the school from excluding Whitaker from the boys’ bathroom. The district appealed, and in late May, the 7th U.S. Circuit Court of Appeals affirmed the lower court order in a landmark decision for LGBTQ rights. Shortly thereafter, Whitaker graduated from high school; he will attend the University of Wisconsin–Madison’s biomedical engineering program in the fall.
I recently spoke with Whitaker about his legal battle and victory at the 7th Circuit. Our interview has been edited for clarity.
Mark Joseph Stern: How did the trouble with your school begin?
Ashton Whitaker: In March 2016, during my junior year, my district told me ‘You can’t use the boys’ bathroom—and by the way, you also can’t run for prom king because we don’t want to recognize your gender identity as valid.’ I decided to do what I do best and make as much noise about it as possible. It started with a petition against the school’s decision. The prom king issue was ultimately resolved; now the school district has policies in place stating that you may run for whichever is more aligned to your gender identity. But the district still wasn’t budging on the whole bathroom issue. Then the Transgender Law Center reached out to me and said, ‘We heard about what’s going on, we’ll represent you if you want to take this to court.’
On the Anniversary of the Pulse Massacre, Insist on Making Queer Space
It’s 2:15 a.m. on June 12, 2016, and Ms. Darcel Stevens is getting out of face in the dressing room of Parliament House gay resort and entertainment complex in Orlando, Florida. Gown already traded for more comfortable gym pants and bare chest, but paint and wig still intact, she activates her Facebook Live stream—a ritual she’d recently picked up to foster community with fans of her shows and activism in the area. “I’m just about to get out of drag,” she begins, collapsing with an exhausted sigh before the smartphone and her vanity mirror. “I’m here all alone by myself, so it’s just conversations between you and I!”
Why the “Gay Babadook” Meme Is So Bewitching
I know you thought you were done with the Babadook after we left him safely tied up and munching earthworms in a basement at the end of the eponymous 2014 Australian horror film—but, honey, you were wrong. You see, it’s LGBTQ Pride season in much of the world, and our top-hatted, long-nailed, pop-up book-crafting terror of a friend isn’t going to miss out on the festivities, oh no.
How the Alt-Right Is Using Sex and Camp to Attract Gay Men to Fascism
At the National Policy Institute’s 2015 conference, alt-right star Richard Spencer’s annual Nazi-fest, a speaker named Jack Donovan exhorted the crowd "to leave the world the way you entered it, kicking and screaming and covered in somebody else’s blood." The same year, in the pages of the The Occidental Observer, one of the most prominent white nationalist webzines, another alt-righter, James J. O’Meara, held forth about how "behind the Negro, hidden away, as always, is the darker, more sinister figure of the Judeo. The Negro is the shock troop. The Jew is the ultimate beneficiary.” Aside from being open fascists and “white racialists,” Donovan and O’Meara have another thing in common: They’re both out gay men.
Stealthing Is a Disturbing Aspect of Gay Sexual Culture. But Calling It a Clear-Cut Crime Won’t Solve the Problem.
In May, a new paper in the Columbia Journal of Gender and Law sparked outrage about stealthing—defined as a penetrative partner removing or tampering with a condom during sex without a receptive sexual partner’s knowledge or consent. Treating the issue as a growing trend, media outletsshared dozens of stories about victims of stealthing, both straight and gay. Most of the gay men presented understandably saw stealthing as, in the words of paper author Alexandra Brodsky, a “disempowering, demeaning violation of a sexual agreement” that put them at risk for sexually transmitted infections in a community where anxiety about HIV runs particularly deep.
But while most of the coverage rightly highlighted people who were victims of clear cases of assault, it largely excluded meaningful insight from people who had initiated the act, and it did not attempt to understand the motivations behind condom subversion. Indeed, the only glimpse into the mind of the stealther that readers were offered came from online trolls who, in the words of Brodsky, brashly celebrate the "increased physical pleasure, a thrill from degradation” of nonconsensual, unprotected sex.
If stealthing is truly the dangerous trend, especially among gays, that the buzz makes it out to be, it’s important to examine the experience from all angles to determine why it’s happening. So I reached out to the many gay men I know who have been involved in some form of stealthing—on both sides of the equation—to find out if it’s as new to the gay community, or as plainly monstrous, as the headlines make it seem.
“Gay Panic” Is No Longer a Legitimate Reason to Murder Someone in Illinois
On Wednesday, the Illinois House of Representatives unanimously passed a bill prohibiting the “gay panic” defense, which allows alleged murderers to defend their actions in court by arguing that their victim’s sexual orientation “triggered” their crime. The bill also bars the “trans panic” defense, which alleged murderers may use to justify the killing of a trans person on the grounds that they were triggered by their victim’s gender identity.
The state Senate already passed the measure unanimously; it now goes to Republican Gov. Bruce Rauner, who is expected to sign the bill. Once he does, Illinois will become the second state in the country to ban the gay and trans panic defense. Only California currently outlaws the tactic, although the American Bar Association called for its abolition in 2013. In Illinois, the defense has been used rarely; its most recent appearance came in 2009, when a jury acquitted a man of first-degree murder after he stabbed his gay neighbor 61 times. The tactic has also been used by Americans abroad, including servicemembers: In 2015, a United States Marine successfully deployed the trans panic defense in the Philippines after strangling a trans sex worker to death. He argued that his victim had deceived him by failing to disclose her gender identity, mitigating his culpability.
Appeals Court: Discrimination Against Trans Students Is Likely Illegal
In an important decision for transgender rights, the influential 7th U.S. Circuit Court of Appeals affirmed that a transgender student in Wisconsin, Ash Whitaker, is likely to prevail in his suit seeking access to the school restrooms corresponding to his gender identity. The decision in Whitaker v. Kenosha Unified School District on Tuesday illustrates that transgender students are protected from discrimination under both federal civil rights laws and the Constitution. This notwithstanding the Trump administration’s withdrawal of guidance protecting transgender students under Title IX, and the Supreme Court’s corresponding unfortunate reluctance to decide the Gavin Grimm case, the 7th Circuit’s decision protecting transgender students rested on two independent grounds.
First, irrespective of the fact that the Trump administration has withdrawn guidance interpreting Title IX of the Education Amendments Act of 1972 to protect transgender students, the 7th Circuit held that the statutory text of Title IX, as interpreted by the Supreme Court, protects transgender students from discrimination. According to the court, “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”
The court’s reasoning built on a long line of authority holding that sex-stereotyping—that is, treating someone differently because of their perceived failure to conform to dominate notions of what it means to be sufficiently male or female—is a form of impermissible sex discrimination. And the decision should lend support to the case of Gloucester County School Board v. Gavin Grimm, which is back before the 4th Circuit.
The Architect of Marriage Equality on Why the Freedom to Marry Is Going Global
On Wednesday, Taiwan’s Constitutional Court ruled that laws prohibiting marriage between two people of the same sex violate constitutional guarantees of equality. The court ordered parliament to amend the civil code within two years to comply with its decision. Once it does, Taiwan will become the first jurisdiction in Asia to allow same-sex marriages.
The triumph in Taiwan was especially thrilling for Evan Wolfson, the architect of marriage equality in the United States. After the Supreme Court legalized same-sex marriage nationwide, Wolfson closed up his campaign, Freedom to Marry, and became an ambassador for marriage equality. Wolfson has traveled the globe promoting LGBTQ rights and working with local activists to change both laws and public opinion. On Thursday, I spoke with him about the Taiwanese ruling and the path forward for international marriage equality. Our conversation has been edited for clarity.
Mark Joseph Stern: What’s your reaction to the ruling?
Evan Wolfson: I’m exuberant. For the last several years, as I’ve been crisscrossing the world sharing the lessons from our campaign, one of my lines has been, “We now had the freedom to marry in 22 countries and six continents—and the continent we don’t have is not Antarctica.” Now we have our first win in Asia and the freedom to marry on all seven continents.
For Many Queer Adults, Parenting Still Isn’t Part of the Picture
It’s 2017. Why aren’t members of the LGBTQ community having kids in greater numbers? I mean, our neighborhood is crawling with gay and lesbian couples, yet only one other couple besides ourselves are raising children. So much for the "gay-by boom" that some were expecting in the wake of visibility and marriage equality.
Though the numbers of gay men, bi people, and (more so) lesbians raising children has climbed in recent years, it continues to lag well behind the rates for straight couples. For this month’s column, I spoke to a number of gay men and lesbians whose lives don’t include raising children. I wanted to know how they’d come to their decision, and whether they thought they might one day be open to changing their minds. What does it mean to be LGBTQ, without kids, today? And what might it mean further into the future?
A Landmark Victory for Trans Rights—Under the Americans With Disabilities Act
The Supreme Court’s historic decision establishing marriage equality for same-sex couples nationwide marked a major shift in the recognition of gay, lesbian, and bisexual people as a central part of the fabric of American society. Transgender people, however, continue to face barriers to full equality. One such barrier has been much discussed: State laws and school board policies—like the one adopted by a school board in Virginia against Gavin Grimm—that bar transgender people from using school restrooms.
Another barrier is, ironically, the Americans with Disabilities Act, a federal law that prohibits discrimination against people with stigmatized medical conditions—unless that stigmatized medical condition is “gender identity disorder” (GID). The story of how the ADA’s GID exclusion came to be, and why one federal court says it must now end, tells us much about the next civil rights frontier: Transgender equality.
In 1989, on the floor of the Senate, Republicans William Armstrong and Jesse Helms urged their colleagues to vote against the ADA because it could protect what they characterized as “immoral” medical conditions. “If this were a bill involving people in a wheelchair or those who have been injured in the war, that is one thing,” Helms quipped, using language we might now expect from President Donald Trump or Attorney General Jeff Sessions, “but how in the world did you get to the place that you did not even [ex]clude transvestites” and people “engaged in activities that most Americans find abhorrent”? For Helms, the ADA flew in the face of an employer’s right to set up “moral standards” for his business—the right to ask his employees, “Are you HIV positive? Are you this or that?”