Transgender student sues Elkhorn school district over bathroom access

A Wisconsin seventh-grader is suing her school district for barring her from the girls' bathroom because she is transgender, according to a suit filed in federal court Thursday.

Her attorneys say the Elkhorn Area School District violated Title IX, a federal law that prohibits discrimination based on gender or sex in schools.

The district's superintendent, Jason Tadlock, said Monday he couldn't comment immediately on the lawsuit, as he hadn't been able to review it with the district's attorney.

"That being said, we always strive to meet all our student's needs, and I am saddened to learn that one of our students and/or parents feel that we are not meeting their needs to their satisfaction," Tadlock added in an email.

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

“We are bringing this lawsuit because our daughter has the right to be treated like every other girl at school,” the girl's father said in a news release provided by the family's attorney. “No one should ever be discriminated against for who they are, not at work, and especially not at school.”

The family is represented by attorneys who have experience in similar cases, including a Kenosha case where judges enforced bathroom access for a transgender student. They are asking for a jury trial.

Seventh-grader says she was reprimanded for using girls bathroom

The issue began when the student was 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 increasingly 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.

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

After Dan O'Donnell program, Elkhorn superintendent defended district's practices

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 and provided copies of a district training on the subject to board members.

The next day, the story was picked up by Moms for Liberty leader Scarlett Johnson and blasted by 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.

At the next board meeting, July 24, 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.

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.

Lawsuit follows similar cases in Mukwonago, Kenosha

Federal judges have made conflicting rulings on policies prohibiting trans students from using bathrooms aligned with their gender.

In 2017, judges ruled in favor of a transgender student in Kenosha. 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.

Joseph Wardenski, the attorney who filed the Elkhorn case, was the lead attorney in the Kenosha case.

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.

This summer, a federal judge cited that case in his decision to block the Mukwonago Area School District from stopping a transgender student from using the girls’ bathroom as she chooses, while a lawsuit is pending. Judge Lynn 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; the Florida case was in a different Circuit.

The Mukwonago girl is represented by two attorneys who are also helping with the Elkhorn case: Robert Theine Pledl and Victoria Davis Dávila of Davis & Pledl, SC in Milwaukee.

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

This article originally appeared on Milwaukee Journal Sentinel: Transgender student sues Elkhorn school district over bathroom access