The Wisconsin Institute for Law & Liberty (WILL) has filed a motion to intervene and participate as an amicus party in a lawsuit against the Elkhorn School District (ESD). This lawsuit, initiated by a transgender middle school student, challenges the district’s policy of designating bathrooms based on biological gender. Representing over 100 parents in the district, WILL aims to defend the school’s policy and ensure a safe environment for all students.
The lawsuit was filed by a 13-year-old transgender student, referred to as Jane Doe, who alleges that the Elkhorn Area School District violated Title IX and the Fourteenth Amendment by denying her access to girls’ restrooms for the past two years. The student was born a male and transgendered to a female. Jane disclosed her gender identity to school officials in the fall of 2022 and was subsequently required to use faculty restrooms under a “Gender Support Plan.” ane’s family states that she has lived in accordance with her female gender identity since 2022, using a traditionally female name and pronouns.
Jane’s attorney, Joseph Wardenski, claims that the restrooms are too far from her classes than the nearest girls bathroom, and this causes Jane to miss class time and distress as she is treated differently from other girls at school. From Wardenski legal profile, he represents clients with similar cases that involve transgender students and state policies. How he landed this case is unknown.
Luke Berg, Deputy Counsel for WILL, emphasized the importance of maintaining bodily privacy for students. “The district’s policy is in accordance with Title IX and centuries of precedent,” Berg stated. He urged the court to adhere to the plain text of Title IX and recognize the accommodations already made for the plaintiff. An Elkhorn parent and member of the association represented by WILL expressed the need for a safe learning environment, stating, “Parents deserve to know their kids will go to school in a safe learning environment. We are not afraid to make our voice heard in court and with our enrollment decisions.”
Title IX regulations explicitly allow for sex-separated bathrooms. According to 34 C.F.R. § 106.33, schools can provide separate facilities based on sex. When this provision was adopted, “sex” referred to biological sex, defined by biology and reproductive function. The plaintiff argues that Title IX now prohibits sex-separated bathrooms, a stance that WILL contends would overturn the original intent of the regulation.
If the court grants an injunction to the plaintiff, it could ignore the privacy and safety concerns of many students and parents. The school has already provided six gender-neutral restrooms as accommodations for the plaintiff. However, granting the plaintiff’s request could force students to choose between a free public education and their right to bodily privacy from members of the opposite sex.
This case is not the first time Wisconsin courts have addressed bathroom access for transgender students. In 2017, the 7th Circuit U.S. Court of Appeals ruled in favor of a transgender student in Kenosha who wanted to use the boys’ restroom. More recently, a federal judge issued a preliminary injunction against the Mukwonago Area School District for a similar policy that required students to use the bathroom assigned at their birth.
Despite Elkhorn’s written policies recognizing the rights of transgender students, public opposition has influenced the district’s actions. During a school board meeting in July 2023, members of the public opposed transgender students’ restroom use, leading the district to maintain its policy of restricting bathroom access based on biological sex.
The Biden administration has proposed changes to Title IX regulations, set to take effect on August 1, 2024. These changes are currently facing legal challenges and may eventually reach the Supreme Court. The current regulations still permit sex-separated bathrooms and WILL argues that these should remain in effect until any new rules are fully reviewed and adjudicated.