Judge blocks Elkhorn School District from limiting transgender student's bathroom access

A federal judge has ordered the Elkhorn Area School District to allow a transgender eighth-grader to use the girls' bathroom this fall while the student's lawsuit awaits a final ruling.

The student's attorneys are arguing the school district violated Title IX, a federal law that prohibits discrimination based on sex, when administrators denied her access to the girls' bathroom.

The order from U.S. District Judge J.P. Stadtmueller, named to the bench in 1987 by President Ronald Reagan, comes amid nationwide legal battles over the enforcement of new Title IX regulations that specifically prohibit discrimination against transgender students.

In his order, Stadtmueller said the student's lawsuit has a "high likelihood of success" based on past similar cases in which judges determined that discrimination against transgender people qualifies as sex discrimination. Stadtmueller said the student would suffer irreparable harm if she continued to be barred from the girls' bathroom, including unwanted attention, lost class time, social isolation, declining school attendance and bullying.

Elkhorn Area School District Superintendent Jason Tadlock said the district will comply with the order, though he disagrees with it. He said the district will install privacy screens on all stalls in the girls' bathrooms to cover cracks in the partitions.

Tadlock told the Journal Sentinel the district hasn't granted permission to any other transgender students to use bathrooms that align with their gender identity. He said he believes the U.S. Supreme Court will ultimately rule that schools can "segregate locker rooms and bathrooms based on biological sex."

The lawsuit doesn't name the eighth-grader, who is referred to as Jane Doe. Her family is ultimately seeking punitive damages and an order barring the district from denying transgender students access to school facilities.

Despite facing ridicule from some community members, the student's parents told the Journal Sentinel they are pursuing the lawsuit both for the sake of their daughter, who they said was limiting her intake of water to avoid having to go to the bathroom, and for other transgender students.

"We've been speaking with our daughter along this entire journey about the risk and rewards for something of this manner," the student's father said. "She understands there is likely going to be some objection to what it is that she’s fighting for. However, she wants to make this fight not only for herself but for others as well in the same situation."

Elkhorn schools are among over 400 Wisconsin schools on a Moms For Liberty list where new Title IX rules are blocked

While new Title IX rules from the Biden administration went into effect last week, codifying protections for LGBTQ+ students, court orders have blocked enforcement of those rules in certain areas.

A federal judge in Kansas temporarily blocked enforcement of the regulations at schools attended by the children of members of Moms for Liberty, while the organization's lawsuit over the rules plays out. Elkhorn schools are among over 400 Wisconsin schools on the membership lists.

In the Elkhorn case, the school district's attorneys brought the Kansas ruling to Stadtmueller's attention, but the judge argued it wasn't relevant to his decision. While the Kansas order blocks enforcement of the new Title IX regulations, it doesn't block Title IX itself, which is the basis of the Elkhorn student's case.

One of the student's attorneys, Joseph Wardenski, previously won a Title IX case about a transgender student's bathroom access in 2017, years before the new Biden administration regulations.

In that case, a trans 17-year-old boy in Kenosha was told he had to use a girls' bathroom or a gender-neutral bathroom in the school's main office. To avoid using 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.

In other cases, judges have ruled differently. In 2022, a court allowed a prohibitory bathroom policy to stand in a Florida school district. More recently, a school district in Indiana was required to allow a transgender student to use the boys' bathrooms, and the Supreme Court declined to take the appeal.

Two attorneys on the team working for the Elkhorn student, Robert Theine Pledl and Victoria Davis Dávila, are also representing a transgender student in a similar case against the Mukwonago Area School District, where a federal judge similarly issued an order requiring bathroom access for the student until there is a final ruling.

The judge in the Mukwonago case, like Stadtmueller, said he was compelled to 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.

Student says she was reprimanded for using girls' bathroom

For the student in Elkhorn, the bathroom issues began in sixth grade, according to the lawsuit. In fall 2022, the student told a teacher that she was transgender and wanted to use female pronouns at school. She had experienced gender dysphoria since third grade, according to the suit.

After the girl told her teacher, the school brought in the girl's parents to create a "gender support plan." According to the suit, the guidance counselor didn't offer the option of using the girls bathroom or locker room. She was told to use the faculty bathrooms.

The faculty bathrooms were farther from her classes than the nearest girls' restrooms, causing her to miss class time. It also made her anxious and embarrassed to be treated differently from other girls, to the extent that she sometimes stayed home from school, according to the suit. At school, she restricted her water intake to avoid needing to go the bathroom.

Using the faculty restrooms caused the student "unwanted attention by classmates and teachers, stigma, heightened anxiety and distress, bullying and harassment by peers, and social and academic withdrawal," according to the suit. The student's mother said she watched her straight-A child get to a point where she didn't want to go to school because of being pointed at, yelled at and harassed.

"My daughter just wants to be able to go relieve herself and go back to class," the girl's mother said.

On some occasions, to "avoid the distress and humiliation" of having to use the faculty bathroom, the student used the girls' bathroom. According to the suit, teachers and administrators reprimanded her for using the girls' bathroom.

In the summer after her sixth-grade year, at a July 17, 2023, school board meeting, board members heard from Melissa Bollinger, the same parent who called for 444 books to be removed from district schools, who raised questions about the district's gender support plans.

The next day, the story was picked up by Moms for Liberty Wisconsin leader Scarlett Johnson and conservative talk show host Dan O'Donnell, who criticized the policy for appearing to allow transgender students to use facilities that align with their gender identity.

At the next board meeting that summer, Tadlock said a talk show host had provided "misinformation." While Tadlock said the district can't require a transgender student to use gender-neutral bathrooms, he said none of the 22 Elkhorn students with gender support plans were using bathrooms that align with their gender identity.

After that board meeting, before the girl started seventh grade, her parents warned Tadlock and middle school principal Ryan McBurney that denying the student access to the girls' bathrooms would violate federal law. Administrators continued to deny access, saying the girl could use other single-occupancy gender-neutral bathrooms, according to the suit. Tadlock and McBurney are both named as defendants in the suit.

After the order from Stadtmueller, Tadlock said many parents have said they want to pull their children out of the district or have them use only a single-occupancy bathroom to avoid the girls' bathroom. Tadlock said the district has expanded access to unisex restrooms throughout the building so students don't have to travel as far.

The student's parents said their daughter has heard some of the feedback and has had classmates reach out to her to say they don't want her in the bathroom. Others have been supportive, they said.

"We are getting community comments that say that this is the right thing to do, that this is good for not only our girl, but it's also good for anybody who is in her current situation," the student's mother said.

Contact Rory Linnane at [email protected]. Follow her on X (Twitter) at @RoryLinnane. 

This article originally appeared on Milwaukee Journal Sentinel: Judge orders Elkhorn school to let trans student use girls' bathroom