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Transgender middle schooler files federal lawsuit against Elkhorn School District

Student has been denied access to girls' restrooms for 2 years

Transgender pride flags line the sidewalk
Transgender pride flags line the sidewalk in Washington, D.C. Ted Eytan (CC BY-SA)

A transgender middle school student has filed a federal civil rights lawsuit against the Elkhorn Area School District for denying her access to girls’ restrooms for the last two years.

The 31-page complaint, filed March 21 in U.S. District Court for the Eastern District of Wisconsin, alleges the Elkhorn Area School District violated Title IX of the Education Amendments of 1972 and the Fourteenth Amendment of the U.S. Constitution.

Superintendent Jason Tadlock said he is not comfortable speaking about the specifics of the lawsuit because he hasn’t had an opportunity to review it with an attorney.

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“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 said in a statement to WPR.

According to the complaint, the student, referred to as Jane Doe, disclosed her gender identity to school officials in the fall of 2022. She was then allegedly forced to enter into a “Gender Support Plan,” requiring her to use faculty restrooms at the middle school. 

“These restrooms, which were located further away from her classes than the nearest girls’ restrooms, caused Jane to miss class time and to experience distress at being treated differently from other girls at school,” said her attorney, Joseph Wardenski, who leads a New York-based civil rights law firm.

Jane is 13 years old. She was born male, but according to her family, began experiencing gender dysphoria in third grade. She came out as transgender at home and school in 2022.

“Since then, she has lived in accordance with her female gender identity at school and in all aspects of her life,” Wardenski said. “She uses a traditionally female name, Jane, instead of her traditionally male birth name. She uses the pronouns she, her, and hers, which are pronouns typically used by women and girls. Because Jane is a girl, she wishes to be treated like every other girl at school.”

Written policies don’t match actions

This isn’t the first time a Wisconsin court has ruled on a student using a bathroom other than the one that matches their sex assigned at birth. In 2017, a three-judge panel of the 7th Circuit U.S. Court of Appeals unanimously sided with a 17-year-old transgender Kenosha high school student who wanted to use the boys’ restroom.

Kenosha Unified School District argued against the boy using the bathroom, saying it caused harm to other students. In the ruling, Judge Ann Claire Williams wrote, “The harms identified by the school district are all speculative and based upon conjecture, whereas the harms to (the student) are well‐documented and supported by the record.”

In July 2023, a federal judge issued a preliminary injunction against the Mukwonago Area School District for a policy that states students can only use the bathroom according to their original sex assigned at birth.

The Kenosha case was five years before Jane’s parents asked the Elkhorn Area School District to let her use the female restroom. 

Since 2016, Elkhorn’s written policies and staff trainings have recognized that denying transgender students access to and use of sex-specific school facilities corresponding to their gender identity violates federal law.

But during a school board meeting on July 17, 2023, members of the public made statements opposing transgender students’ restroom use. They also raised concerns with the district’s gender support protocols and trainings, according to the complaint.

During that meeting, Tadlock assured the public that the district hadn’t allowed any of the 22 students who identified as trans to use a bathroom that didn’t match their sex assigned at birth, according to the complaint.

Wardenski said it’s “remarkable and disappointing” that the school district knows what the law is and is ignoring it.

“As one of the attorneys that litigated the (Kenosha case) it is really upsetting to see that transgender students are still facing this type of discrimination,” Wardenski said. “I think part of it has to do with the ramped up opposition to transgender students and their rights that we are seeing in Wisconsin and across the country.”

Last summer, the Wisconsin chapter of Moms for Liberty, a group that vocally opposes transgender students’ rights, publicly targeted the school district and its policies for transgender students.

In a June 2023 tweet, the group’s leader, Scarlett Johnson, who is not an Elkhorn resident, said, “In an Elkhorn, WI middle school, a biological boy (who is allegedly identifying as a girl or non-binary) routinely used the girls bathroom causing stress and anxiety to both the girls who have to just shut up and take it, but also 6th grade boys who feel helpless and confused at what is happening.”

Brian Juchems, the co-executive director of GSAFE, the Gay Straight Alliance for Safe Schools, said every student should have a fair chance to succeed in school. But trans students face hostility, discrimination and bullying.

“Forcing a trans girl to use a boy’s bathroom puts her at risk for harassment and assault, and forcing her to use a single-stall restroom, only makes her a greater target for bullying and harassment,” Juchems told WPR. “When groups like Moms for Liberty take over and bully school districts and district leaders into making decisions that harm students and harm the district, everyone loses everyone is less safe.”

Jane Doe and her attorney are currently seeking a jury trial. Depending on the response from the Elkhorn Area School District, Jane Doe and her attorney could seek an injunction to allow her to use the girls’ restroom while they await trial.