Federal Judge Orders School District to Allow Transgender Girl to Continue Using Girls’ Bathroom

A federal judge last month granted a temporary restraining order and a preliminary injunction to an 11-year-old Wisconsin girl and her mother, allowing her to continue using the girls’ bathroom. From the first grade onward, the transgender girl has used the bathroom corresponding to her gender identity.

U.S. District Judge Lynn Adelman issued a temporary restraining order and a subsequent injunction to prohibit the Mukwonago Area School District from enforcing its bathroom policy that requires students to use restrooms corresponding to their gender assigned at birth.

In April, the family, which The Advocate is not identifying, was told that other parents in the school district had expressed concerns about the girl’s gender identity. In the lawsuit, the child is referred to as Jane Doe #1 and her mother as Jane Doe #2

“I received a phone call one day in April, and it was from the elementary school that my daughter attends,” the mother says. “The principal was telling me that she was receiving phone calls from parents, asking questions about my child. And after I asked what kind of questions were being asked, [I was told] parents were asking whether or not she’s trans, whether or not she’s biologically male. They were asking about what was in her pants. And the principal assured me that, just like with any other student, she didn’t share any information.”

According to the lawsuit, the girl and her mother claim that the bathroom policy led to ongoing mental and physical harm, including peer ridicule.

The child has identified as a girl since she was very young. Her mother says she began her social transition entering first grade. Moreover, she participated in school activities for girls since entering first grade.

Their lawsuit alleges that the district is discriminating against the girl based on gender, which is prohibited under Title IX.

District officials claim the girl is unable to specify the specific irreparable harm caused by the policy, and they have offered to let her use either the male or gender-neutral restrooms.

As a result of the district’s refusal to allow the student to use girls’ rooms, the judge found that the student has suffered “irreparable and emotional harm creating a risk of physical harm.”

According to the judge, the plaintiffs have a good chance of winning on the merits of their arguments, as the 7th Circuit Court of Appeals ruled in the Whitaker vs. Kenosha Unified School District case that transgender students were protected from discrimination under Title IX.

The judge ruled that neither the school district nor any other entity is to enforce policies prohibiting the student from using girls’ restrooms at school or during school-sponsored events, nor should she be disciplined for using them.

Alexa Milton, the girl’s attorney, said, “It seems clear to us that the judge gets what’s happening here and is seeing through some of the excuses and bluff that the district is putting up.”

“She uses the bathroom the way other fifth and sixth-grade girls do by going inside a stall and closing the door,” Milton said. “There’s no privacy implication here.”

Milton added, “From a legal perspective, to be having these cases in the 7th circuit where we have the precedent from the Whitaker case a number of years ago that made it quite clear that you can’t do this and to still have school districts feeling like somehow that doesn’t apply to them or there’s wiggle room, that they’re different — that’s [been] very frustrating.”

Milton noted that schools have an interest in protecting all of their students’ privacy rights. But, she says, the only person’s privacy being disregarded is the girl’s.

“There’s been no evidence that the privacy of any student other than our client’s has been implicated by letting her use the bathroom,” Milton said. “These complaints started this spring, but they’re not based on any incidents, things that have happened, or actual facts. It’s this sort of conjecture and general sentiment and transphobia, and that’s not enough to justify a policy that’s harming our clients.”

The girl’s mother said her daughter, entering the sixth grade in the fall, realizes what’s happening but doesn’t understand why adults are policing her bathroom behavior. She said she can't believe that those entrusted to care for children would make a child feel unsafe over needing to conduct bodily functions.

“My daughter came to me with the fact that she’s being monitored by adults with her bathroom usage, and she was telling me one day, ‘Mom, it’s just creepy,’” the mother said. “She’s walking down the hallway, and a teacher is standing there who watches her around the corner, watches her walk into the girl’s restroom, she uses the restroom, she washes her hands, she comes walking out, and that teacher is just standing there and observing her.”

She added, “That is creepy for me as an adult. If I were to go to the restroom and somebody stood there staring at me, that’s creepy.” The mother said that as an adult, she would speak up and confront the person, but that’s impossible as a kid taught to respect their elders and trust teachers.

“How do you address that when you’re 11 years old, and these are the teachers that are supposed to be keeping you safe?” she asked. “She’s going to the bathroom to go to the bathroom, and that’s the end of it.”

The girl’s mother noted that the school’s discriminatory policy affects more than just her child.

“There happens to be a young man in the high school who is on hormones, and that young man has a beard and chiseled features,” she said. “And now this [new school] policy says that he now has to use the restroom that aligns with his original sex at birth. So you’re sending that young man into the girl’s restroom. It’s almost like nobody thought of this.”

Milton said the ball is in the school district’s court now as it decides how to respond.

“If they don’t [appeal the injunction], then the case will follow the same kind of schedule as normal litigation, which is, they have a choice to either move to dismiss the complaint, or they can answer the complaint, and then we would move into discovery,” she said.

Milton added, “That’s assuming they continue to fight it. Certainly, we would be happy to talk about other ways to resolve this quickly.”

Mukwonago Area School District superintendent Joseph Koch told The Advocate that he was unable to comment “due to the nature of the litigation,” but he pointed to previous statements that he had released.

In his latest statement, Koch committed to implementing the school district’s anti-trans bathroom policy.

“The District will continue to defend our policy and move forward with an appeal of this injunction,” he wrote the day following the federal judge’s injunction.