The Potty Policy
Author’s note: This story is based upon an actual case decided by the Seventh Circuit Court of Appeals on May 30, 2017 in Ashton Whitaker, etc. v. Kenosha Unified School District No. 1 Board of Education, et al., case Number 16-3522. In summary, this is a case concerning a transgendered female to male student’s using the boys’ washroom at school, and his battle with the School District. The School District lost and the transgendered student won. I have taken great literary license with this case, changed names, modified facts and created dialog out of thin air. However, the ruling by the court has not been changed. Please do not rely on this story as a statement of law or legal advice.
Sarah Daniels could not be considered beautiful, or even cute. She was larger than most girls in her class, and did not have the curves associated with eighth grade girls. She looked a lot like a boy. She was physically strong and enjoyed sports.
On a warm spring afternoon after school, Sarah walked into the kitchen of her family home and dumped her book bag on the floor. “How was your day, honey?” her Mother asked.
“Okay,” Sarah replied as she walked over to the refrigerator.
“Learn anything interesting?”
“No.” she started. “Wait, Yes, In health class they talked about boys who think they are girls, and girls who think they are boys, or something like that. It got me thinking. I am more boy than girl.”
“Oh my,” her Mother responded, and then said, “We won’t be ready to eat for another two hours, why don’t you practice your music?” Mothers have a way of changing the topic when they want to avoid discussing something, like whether a daughter should be a boy.
Sarah persisted, and at dinner that evening she brought up what had been discussed in health class. “Sometimes I think that I should be a boy, not a girl. I’m not pretty or petite. I look a lot like a boy and I like doing boy kind of things.”
“But you are a girl,” he Mother said.
* * *
Sarah’s Mother did not forget what Sarah had said that evening and over the summer after her graduation, her Mother observed that she acted more like a boy than a girl. It became more difficult to get her to wear dresses or skirts. Sarah preferred androgynous clothes. Sarah had friends who were boys, but no ‘boyfriend’ as in ‘boyfriend/girlfriend.’ Sarah had some friends who were girls, but none who were close, as might be usual for girls Sarah’s age. She never tried out makeup with them, and when the girls reached puberty and developed curves, Sarah didn’t.
Before starting high school, Sarah had a frank discussion with her parents. “Mom, Dad, I’m really a boy in a girl’s body, not that my body is that girlish. From now on, I want to be a boy.” Accordingly, at the beginning of her freshman year at Riverwoods High School, she began to openly identify as a boy, He began to use the name Samuel or Sam and asked be addressed using male pronouns. As Sam, he cut his hair and began to wear more masculine clothing. This continued through Sam’s freshman year, without any significant problems.
On the first day of his sophomore year, Sam approached his home room teacher, Mrs Fletcher. “Mrs. Fletcher, I’ve decided to be a boy. Please call me Samuel or just Sam,” he said.
Mrs. Fletcher was taken aback. “Can you just decide to do this?” She looked at the home room attendance sheet. “But this has you down as Sarah, I don’t know if I can change this, It’s all on the computer, you know.”
“You don’t have to change the attendance sheet,” he continued, “Just when you see the name ‘Sarah’ just say the name ‘Sam’ and use masculine pronouns.”
“Well, err, I guess so,” Mrs. Fletcher said with an uncertain tone in her voice.
Sam repeated this for all of his classes. Since he had a good grade point average and didn’t cause any problems during his freshman year, most of the teachers more or less went along with him.
He also told his classmates to call him Sam and use masculine pronouns.
In the fall of that year, Sam continued to publicly transition and began to see a therapist. The therapist subjected him to a battery of tests and held lengthy interviews. The therapist diagnosed him with Gender Dysphoria. The therapist explained it in technical jargon as ‘a marked
incongruence between one’s experienced/expressed gender and assigned gender’.”
In January, Sam took part in an orchestra performance, wearing a tuxedo. His orchestra teacher, classmates, and the audience accepted this without incident.
Wearing a tuxedo is one thing, using the boys’ restroom is another. Sam and his mother met with Nancy Groton, Sam’s guidance counselor at school. “I’d like Sam to be permitted to use the boys’ restrooms while at school and at school-sponsored events,” his mother said.
“I see,” Ms. Groton said, but it was clear that she didn’t. “I’ll have to take this up with the principal, and let you know,” she added. There was no immediate decision made, and Sam and his Mother had several additional meetings with Nancy Groton, at which the request was repeated.
“It’s a simple request, and we are entitled to an answer,” Sam’s mother said.
“No, it’s not that simple,” Ms. Groton said. “You see, Sarah ... I mean Sam, is registered as a female.”
“But look at him,” Sam’s Mother asserted. “Does he look like a girl?”
“How Sam or Sarah appears to me is not the point.”
“Then what is the point?” Sam asked.
“The point is what the principal and administration decide.” Ms. Groton responded.
Then came the decision. “The administration has decided that you can only use the girls’ restrooms or a gender-neutral restroom in the school’s main office,” Nancy Groton told Sam and his mother at the final meeting.
“But the restroom is quite a distance from all of my classrooms,” Sam complained.
“I’m sorry, but that is what the administration decided,” Nancy Groton responded in a tone of voice which indicated that she was not sorry at all.
“But I’ve already publicly transitioned, and using the girls’ restrooms will undermine my transition.” Sam complained.
Ms. Groton said nothing in reply. “Will I be the only student permitted to use that washroom?” Sam asked.
Sam paused a moment, and then added, “using it will draw further adverse attention
to my transition and status as a transgender student.”
On the way home from the meeting with the guidance counselor, Sam confided, “I’m worried that I might be disciplined if I try to use the boys’ restrooms. That discipline might hurt my chances of getting into college.”
“I understand,” his mother said
“Maybe if I drink less water, I can avoid using any restroom at school for the rest of
the school year,” he concluded.
Shortly after that, Sam related his decision to his Physician. “If I don’t drink a lot of water, I won’t have to pee as much, and won’t have to use any washroom.”
“I can’t recommend that,” his Physician responded. “Your body needs a certain amount of water to function properly. Your decision could have serious consequences.”
“Like what?” Sam’s Mother asked.
“Sam has been diagnosed with vasovagal syncope,” the Physician said, “This condition rendered Sam more susceptible to fainting and/or seizures if dehydrated. To avoid triggering the condition, I advise him to drink six to seven bottles of water and a bottle of Gatorade daily.”
“I don’t know whether I want to do what the Doctor advised,” Sam later confided to his Mother, “I hate having to use that washroom.”
Accordingly, Sam decided to restrict his water intake to ensure that he did not have to utilize the restroom at school, and he indeed suffered from symptoms of his vasovagal syncope, including fainting and dizziness. He also suffered from stress related migraines, depression, and anxiety because of the policy’s impact on his transition and what he perceived to be the impossible choice between living as a boy or using the restroom.
After being sent home following a fainting attack, he told his Mother, “I wish I was never born. In fact I wish I were dead.”
“Honey, you’re not thinking of killing yourself?” his Mother asked anxiously.
“I am,” Sam replied.
* * *
The next September, Sam started his junior year, and only used the boy’s washroom. For six months he did this without incident.
Then it happened. A teacher saw Sam in the boy’s restroom and reported it to the Principal. The Principal called Sam’s Guidance Counselor, Ms. Groton, and explained the matter to her. “I want you to put a stop to this. Talk to this student and advise her of the adverse consequences of her behavior.” Suitably briefed, Ms. Groton had Sam summoned from his class.
What followed was not pleasant, at least for Sam. He was seated in a hard chair in the reception area for his Guidance Counselor, Ms. Groton.
“I’m really disappointed with you,” Ms. Groton said in the way of a greeting. “You’ve been told many times that you may not use the boys’ restroom. Why do you insist on disobeying this rule?” The session went downhill from then. Finally Ms. Groton told Sam, “If you want to change this, you have to speak with the Principal.”
Sam reported the substance of this incident with his Mother, who requested a meeting with the Principal. On the appointed day Sam and his Mother appeared at the Principal’s office for a meeting with the Assistant Principal, Ms. Stephanie Stevens, to discuss the school’s policy. Like before, Ms. Stevens stated that Sam was not permitted to use the boys’ restrooms.
“I don’t see why,” Sam’s Mother stated.
“Your child is listed as a female in the school’s official records,” Ms. Stevens said, “and to change those records you need legal or medical documentation.”
“Like what?” Sam’s Mother retorted.
Ms. Stevens did not know, but she didn’t want to admit it. “Documentation that Sam is really a boy.”
“I’ve given you his Physicians’ and counselor’s reports, aren’t they enough?
Apparently they weren’t enough, because the school records were not changed.
Then Sam’s Mother submitted two letters from Sam’s Pediatrician, identifying him as a transgendered boy and recommending that he be allowed to use male-designated facilities at school. These were reviewed and deemed not sufficient to change Sam’s designation.
In response, the school changed it’s story. At a subsequent meeting with the administration Sam and his Mother were told that the school maintained that Sam would have to complete a surgical
transition. Sam’s Mother went ballistic. “That is pure nonsense,” she said, “that procedure is prohibited for someone under the age of 18!”
She also said, “Further, not all transgender persons opt to complete a surgical transition, preferring to forgo the significant risks and costs that accompany such procedures. You have never given me a written statement of your policy and how a person can change his or her status.”
The School did not give any explanation as to why a surgical transition was necessary. Indeed, the verbal statements made to Sam’s mom about the policy were never reduced to writing. As it later appeared, the School never provided any written document that detailed when the policy went into effect, what the policy is, or how one can change his status under the policy.
Fearing that using the one gender-neutral restroom would single him out and subject him to scrutiny from his classmates and knowing that using the girls’ restroom would be in contradiction to his transition, Sam continued to use the boys’ restroom for the remainder of his junior year.
* * *
Meanwhile, at the Principal’s office: The Principal sat at his desk. All of the school’s security guards stood in front of the desk.
“We have a problem here,” the Principal began, “we have a girl using the boy’s restroom, against what we have told her is not permitted. The student’s name is Sarah Daniels, but she goes by the names of Sam or Samuel Daniels.”
The Principal picked up some photographs from his desk. “Here are photographs of Daniels.” You are instructed to monitor this student’s use of the boys’ restroom, and report the same to me.
I will have the student brought in to me when it happens.”
Some people watch too many action and espionage movies, and a certain school security guard was one of them. He had romanticized his job as one requiring stealth and immediate action to enforce the school’s rules. Therefore, this school security guard stood in a darkened recessed doorway off the hall, waiting to nab his quarry which he only knew as a student named Sarah. He was dressed in his uniform shirt and black cotton twill BDU pants, the cuffs of which were neatly tucked in his uniform boots. Only his right hand was visible, and in that hand he held a small mirror by which means he could view the entire hallway. He had studied the photograph and felt that he could identify ‘Sarah.’ He had conducted subtle reconnaissance a short time before and knew that his quarry was in room 214. Only a boy’s lavatory stood between his darkened doorway and room 214.
He stood there waiting, until suddenly a loud bell sounded and the occupants of room 214 flooded into the hall. In his mirror he recognized his quarry, who moved down the hall toward him, only in the last minute to dart into the boys’ lavatory accompanied by other former occupants of room 214. There was no indication that his quarry was aware of his presence.
“Now I’ve got you, red handed,” he said to himself, and not wishing to waste a moment, he rushed into the lavatory. He spotted his quarry who was dressed in khaki pants and a long sleeved cottons shirt, almost identical to the attire of the other occupants. He quickly moved up to his quarry and loudly announced. “Hold it right there, miss, you’re not allowed in a boy’s washroom. You’ll have to come with me,” and he pointed to the door. Sam, his quarry, muttered a dark oath, and headed for the door with the guard.
Sam’s next class was English, where the class was studying Shakespear’s ‘Twelfth Night’ which ironically is a play where a girl disguises herself as a man. A messenger from the Principal’s office interrupted the class and handed the teacher a note.
“Daniels, you are to report to the Principal’s office,” the Teacher said. With that, Sam accompanied the messenger to the Principal’s office.
“Miss Daniels,” the Principal started, with emphasis on the word ‘Miss,’ “Why do you insist on violating school policy by using the boy’s restroom?”
“Could I see a copy of that policy?” Sam responded.
“Er ...” the Principal said, “It’s unwritten, but you know well what that policy is. It has been explained to you multiple times.”
“With multiple variations,” Sam responded, “so I’m not exactly sure what that policy is.”
The discussion went downhill from there, only to be repeated on future occasions.
Sam fended off questions from other students as to why he was called to the Principal’s office, but it was embarrassing.
* * *
Sam and his Mother had enough, and in April they consulted an attorney, who sent the School District a letter demanding that it permit Sam use the boys’ restroom while at school and during
school-sponsored events. In response, the School District repeated its policy that Sam was required to use either the girls’ restroom or the gender-neutral facilities.
The school didn’t appear to want to change its position.
Sam met with his attorneys. “We suggest that you file an administrative complaint with the United States Department of Education’s Office for Civil Rights, alleging that the school’s policy violated your rights under Title IX.”
The attorneys also suggested that Sam file a federal case seeking to enjoin the school’s restroom policy.
“If we want to pursue the case in federal court, we will have to dismiss the administrative complaint. We can do this ‘without prejudice’ which means that we can reinstate it if we have to.”
Sam filed suit, seeking a preliminary injunction against the school. The preliminary injunction sought to prevent the school from continuing its washroom policy.
While all of this was going on, Sam started hormone replacement therapy and a month later legally changed his name to Samuel Daniels.
It was not long thereafter that the district court entered a preliminary injunction prohibiting the school district from: (1) denying Sam’s access to the boys’ restroom; (2) enforcing any written or unwritten policy against Sam that would prevent him from using the boys’ restroom while on school property or attending school-sponsored events; (3) disciplining Sam for using the boys’ restroom while on school property or attending school-sponsored events; and (4) monitoring or surveilling Sam’s restroom use in any way.
It is not surprising that the school filed an appeal. The Court of Appeals affirmed the district court’s granting of a preliminary injunction.
At long last, Sam was allowed to use the boys’ room
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