Equity & Diversity

District Can’t Restrict Transgender Student’s Bathroom Use, Federal Judge Says

By Eesha Pendharkar — July 31, 2023 5 min read
A group of around 200 people who turned out for a rally inside the Nebraska State Capitol hold up signs in support of the transgender community on March 24, 2023 in Lincoln, Neb. A Wisconsin district can't enforce a policy banning trans students from using the bathrooms of their choice, a judge said.
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A Wisconsin school district can’t bar transgender students from using bathrooms aligning with their gender identity, according to a federal judge.

In a preliminary injunction on July 11, U.S. District Judge Lynn Adelman said that the Mukwonago Area School District can’t make an 11-year-old transgender girl use male or gender-neutral bathrooms, after the student and her mom sued the district.

The judge’s opinion may indicate that school district policies aiming to ban transgender, nonbinary, and gender nonconforming students from using the bathrooms of their choice could face some legal issues while implementing those policies, as Adelman said Mukwonago’s policy violated Title IX protections for those students.

The Mukwonago school board adopted a policy in late June of this year, requiring all students to immediately use restrooms based on their “original sex assigned at birth.” Any parental request for exceptions would be considered on a case-by-case basis, according to the policy.

“The board believes students should feel safe and secure in the school environment, and the board respects their right to privacy as it pertains to the use of district facilities,” the policy said, as a reason for passing the policy.

The 11-year-old student had been using female bathrooms without incident for almost two years, since she moved to the district in third grade, according to the lawsuit. But in May 2023, administrators started monitoring which bathrooms she used, the lawsuit said. They did not allow her to use female bathrooms despite requests from her mother, the lawsuit says.

The lawsuit seeks a permanent injunction, along with a declaratory judgment that the policy violated Title IX and the 14th Amendment, and compensation for “economic and educational losses, humiliation and embarrassment, emotional distress, and reputational harm.”

The preliminary injunction will let the student go back to using female bathrooms while the case is litigated.

The district, which declined to comment on pending litigation, had previously said it would defend its policy “in the interest of protecting the safety, privacy, and wellness of all students,” and said it plans to appeal the preliminary injunction.

Milton believes this ruling may be an indication for school districts and states nationwide that banning transgender students from using bathrooms and locker rooms aligning with their gender identity could violate their Title IX protections.

At least nine states have laws that prohibit students from using bathrooms, locker rooms, and other school facilities aligned with their gender identity, according to the Movement Advancement Project, which tracks legislation on several topics across the country. These bans are part of a larger push by Republican lawmakers to restrict classroom instruction on topics of gender identity and sexual orientation, prohibit teachers from using students’ affirming pronouns and names, and limit trans students’ participation in athletics.

The student had felt affirmed at school for years until the bathroom policy

The student and her mother claimed that the district violated Title IX, the federal law that bans discrimination in schools on the basis of sex, and was recently updated to protect transgender students, and the equal protection clause of the 14th Amendment, according to the complaint.

The student had come out to her family and presented as a girl since she was 3, and had been using the female bathrooms at Mukwonago and her previous school since the first grade, the lawsuit said.

When she moved to an elementary school at Mukwonago, her mom disclosed her transgender identity to her principal and teachers, and for those couple of years, she felt affirmed and supported by peers and teachers, and could participate in girls’ sports and extracurricular activities without restrictions, the lawsuit said.

In April 2023, the principal at the elementary school started getting calls from other parents about the transgender student’s identity, asking about her genitals, according to the lawsuit. Around the same time, a private Facebook group called “Mukwonago Parents for Normal Education,” allegedly started posting about her in the group, calling her dangerous, the lawsuit said.

On May 15, the school board held a closed meeting to discuss the student’s bathroom use, and suggested options including requiring that she use a separate bathroom designated solely for transgender students, or a single-occupancy, gender-neutral restroom, according to the lawsuit. Her mom insisted on her right to use the female bathroom, and the board did not reach a conclusion at that meeting.

However, at the next board meeting on May 22, after some parents complained about transgender students, saying there was a “boy in the girls’ bathroom,” the school board said the 11-year-old could continue using the girls’ bathroom if she proved her gender dysphoria diagnosis. The student’s mother sent the district her doctor’s note declaring the diagnosis, the lawsuit said.

She was allowed to use the girls’ bathroom until June 16, when Superintendent Joe Koch sent her a letter saying she would now be required to use the boys’ bathroom, or gender-neutral bathrooms. The board passed its policy 10 days later. The only gender-neutral bathrooms are located in administrative offices and in the nurse’s office, the lawsuit said. After she continued using the female restroom, the student was pulled out of class twice, and told she would face disciplinary action, according to the lawsuit.

“The school district’s actions were singling her out, and stigmatizing her, and causing all this emotional distress that she’s experiencing,” Milton said.

The judge grants the injunction based on precedent

For the past few years, the debate over which restroom transgender students may use at school has been playing out in the nation’s courtrooms, resulting in conflicting rulings, reflecting the ongoing legal battle surrounding transgender rights.

In this case, Adelman cited another Wisconsin case from 2017, in which a transgender high school boy was prevented by the Kenosha school district from using the boys’ restroom, and succeeded in getting a preliminary injunction against the district’s enforcement of his bathroom use. The Seventh Circuit Court upheld the decision to support the student upon appeal.

In Mukwonago, like the Kenosha case, Adelman said it was clear the district had discriminated against the transgender student.

He cited the student’s emails to her mother, sent while she was at school, that prove she was in distress after not being allowed to use the female bathrooms.

“It is the district’s policy of illegal discrimination that is the source of [the student’s] irreparable harm, and no amount of “accommodation” could repair the harmful psychological effects of that discrimination,” Adelman, who was appointed by then President Bill Clinton in 1997, wrote.

“Defendants are depriving [the student] of a basic human need that is central to our identity. The only way to prevent this harm is to end the discrimination.“

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