Transgender Middle School Student Files Sues Wisconsin School District for Denying Her Access to Girls’ Restrooms

EducationDoe v. Elkhorn Area School District

Mar 25

On March 21, 2024, Wardenski P.C. and Davis & Pledl, SC filed a federal civil rights lawsuit against the Elkhorn Area School District (EASD) and two administrators on behalf of a transgender student at Elkhorn Area Middle School (EAMS). The seventh-grade student, referred to in the lawsuit as Jane Doe, has been denied access to girls’ restrooms at schoolfor the last two school years.

The 31-page complaint, filed in United States District Court for the Eastern District of Wisconsin in Milwaukee, alleges that EASD violated Title IX of the Education Amendments of 1972 and the Fourteenth Amendment of the U.S. Constitution by banning Jane from using girls’ restrooms, threatening her with discipline for using those restrooms, and requiring her to use faculty restrooms or single-occupancy restrooms.

As alleged in the complaint, EASD’s written policies and staff trainings have recognized since 2016 that denying transgender students access to and use of sex-specific school facilities corresponding to their gender identity violates federal law. In practice, however, EASD does just that. At a July 2023 school board meeting, EASD Superintendent Jason Tadlock told the board and members of the public that 22 transgender students are currently enrolled in EASD schools but none of them are allowed to use restrooms matching their gender identity. Rather, all of them, including Jane, are required to use either single-occupancy restrooms or sex-specific restrooms conflicting with their gender identity.

When Jane disclosed her gender identity to EAMS school officials in Fall 2022, she was forced to enter into a “Gender Support Plan” that required her to use one of handful of faculty restrooms at the 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.

In August 2023, before Jane started seventh grade, her parents requested that Jane be allowed to use girls’ restrooms when she returned to school. Her parents told Superintendent Tadlock and EAMS Principal Ryan McBurney that continuing to deny her access to those restrooms would violate federal law. They summarily denied the request, citing recent community opposition to transgender students’ rights, and agreeing only to permit Jane to use several additional single-occupancy restrooms at EAMS.

The lawsuit alleges that EASD, Tadlock, and McBurney have denied Jane — and all other transgender students in EASD — access to school facilities matching their gender identity in conscious and blatant disregard of binding federal court decisions from the U.S. Court of Appeals for the Seventh Circuit, the federal appeals court that covers Wisconsin, Illinois, and Indiana. In a landmark 2017 decision in Whitaker v. Kenosha Unified School District, a lawsuit brought by a transgender high school student in Kenosha, Wisconsin, the Seventh Circuit held that denying a transgender boy access to boys’ restrooms violated his rights under Title IX and the Fourteenth Amendment. In August 2023, in A.C. v. Martinsville School District, the Seventh Circuit reaffirmed and expanded its holding in Whitaker, ruling in favor of several transgender students in Indiana whose schools denied them access to restrooms and locker rooms matching their gender identities.

The lawsuit, Doe v. Elkhorn Area School District, No. 2:24-cv-00354 (E.D. Wis.), was brought on Jane’s behalf by her parents, identified in the suit as John and Jill Doe. In addition to EASD, the suit names Superintendent Tadlock and Principal McBurney as defendants. The suit asks the court for preliminary and permanent injunctions barring EASD from denying Jane and other transgender students access to gender-appropriate school facilities, compensatory and punitive damages, and attorneys’ fees and costs.

“We are bringing this lawsuit because our daughter has the right to be treated like every other girl at school,” said Jane’s father, Mr. Doe. “No one should ever be discriminated against for who they are, especially not at school.”

“Under federal law, Jane and all transgender students have the right to use school restrooms that match their gender identity,” said Joseph Wardenski, one of Jane’s attorneys. “The Elkhorn Area School District’s egregious failure to comply with clear, controlling case law is subjecting Jane to needless harm.”

Jane is represented by Joseph Wardenski of Wardenski P.C., a civil rights law firm based in New York, with support from Wardenski P.C.’s Nigel Shelby Civil Rights Litigation Fellow, Allie Vance. Robert (Rock) Theine Pledl and Victoria Davis Dávila of Davis & Pledl, SC in Milwaukee are co-counsel. Mr. Wardenski was the lead attorney for the plaintiff student in Whitaker, leading a case team that included Mr. Pledl. Mr. Pledl and Ms. Davis Dávila are also representing a transgender student in a similar lawsuit against another Wisconsin school district, Doe #1 v. Mukwonago Area School District, which is pending in federal court.