Federal judge extends block on anti-trans bathroom policy in Mukwonago schools

While a lawsuit is pending, the Mukwonago Area School District cannot stop a transgender student from using the girls’ bathroom as she chooses, under a new ruling from a federal judge.

The order comes as part of an ongoing lawsuit from an 11-year-old trans student who was stopped from using the girls' bathroom at Prairie View Elementary School this year, after she had been using it for nearly three years. The district implemented a new policy in June that requires students to use bathrooms according to the sex they were assigned at birth.

Judge Lynn Adelman already issued a temporary restraining order last week, meant to protect the student's use of the girls' bathroom until he could make a "more detailed" ruling on a preliminary injunction Tuesday in the Eastern District of Wisconsin federal court.

The girl and her family are ultimately asking the court to permanently block the district from enforcing the policy against the student. The family's attorneys argue the policy violates Title IX, a federal law that prohibits discrimination based on gender or sex in schools.

In granting the injunction, which will stand while the case plays out, Adelman said it was likely the girl would win the suit and that she would suffer "irreparable harm" if he didn't stop the district from enforcing its policy against her in the meantime.

In a statement after the first restraining order was issued, Mukwonago Area School District Superintendent Joe Koch said the district would continue defending the policy "in the interest of protecting the safety, privacy, and wellness of all students."

Judge looks to similar case involving Kenosha student

Federal judges have made conflicting rulings on policies prohibiting trans students from using bathrooms aligned with their gender. In two major cases in 2017 and 2020, including one out of Kenosha, judges ruled in favor of trans students. But last year, a court allowed such a policy to stand in a Florida school district.

Adelman argued that he should follow the precedent of the Kenosha case, as it was decided by the Seventh Circuit of the U.S. Court of Appeals, which covers Wisconsin, while the Florida case was in a different Circuit.

The Kenosha case revolved around a trans 17-year-old boy who was told he had to use a girls' bathroom or a gender-neutral bathroom in the school's main office. To avoid any bathroom, he began severely limiting his fluid intake, which led to fainting and dizziness. A three-judge panel ruled unanimously that the student should be allowed in the boys' bathroom.

The Mukwonago Area School District's policy, which the school board unanimously approved June 26, requires students to use restroom and locker room facilities "according to each student's original sex assigned at birth," while allowing for exceptions in consultation with a student's family and district staff.

The Waukesha School District has a similar policy, requiring students to use shared bathrooms and locker rooms "according to their biological sex," allowing for exceptions if approved by the superintendent and parent.

Parent complaints led to Mukwonago policy

According to the lawsuit, the 11-year-old Mukwonago Area School District student has been using the girls' bathroom since first grade. She moved to the district in third grade and continued using the girls' bathroom "without incident or controversy," and "felt happy and welcomed at school," until things changed toward the end of her fifth grade year, this spring.

Parents started calling the principal in April about the student's use of the girls' bathroom, according to the lawsuit, and formed a Facebook group called "Mukwonago Parents for Normal Education" where users described the student as dangerous without basis, according to the lawsuit. The student began experiencing "unprecedented bullying" at school, according to the lawsuit.

Going into summer school, before the district passed its policy, administrators told the student June 16 she had to use the boys' bathroom or a "gender-neutral" option. The "gender neutral" options, which were in the nurse or administration office, were much farther from classes than the girls' bathroom, according to the lawsuit, and she worried about the "stigmatizing, isolating nature of being forced to use a segregated bathroom apart from every other classmate."

Ten days later, the school board passed the policy. When the student used the girls' bathroom that week, a staff member took her to the office, where she was told she was violating school board policy. Staff told her mom the student would be disciplined if she continued using the girls' bathroom, according to the lawsuit.

Attorneys for the family sent the district a letter June 27, demanding that the student be allowed to use the girls' bathroom. The district then offered to "engage with the family" on the subject but didn't suggest the district would consider making an exception to the policy for the student, according to the judge's summary of the case.

The family's attorneys then filed the lawsuit June 30 against the district and superintendent.

Judge finds policy would cause student 'irreparable harm'

To get the injunction, the family's attorneys had to show the student would experience "irreparable harm" under the district's policy. The attorneys are with two firms: Milwaukee-based Davis & Pledl, and Washington, D.C.-based civil rights law firm Relman Colfax.

The school district's attorneys, from Buelow Vetter, disputed that the student would be irreparably harmed, noting that it had offered alternative bathrooms. Adelman found that the "gender neutral" alternatives were not sufficient.

"It is the district's policy of illegal discrimination that is the source of plaintiff's irreparable harm, and no amount of 'accommodation' could remedy the harmful psychological effects of that discrimination," Adelman wrote.

Under Adelman's order, the school district cannot stop the girl from using the girls' bathroom or discipline her for doing so while the case remains open.

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This article originally appeared on Milwaukee Journal Sentinel: Federal halts anti-trans bathroom policy in Mukwonago schools