Federal Court Bars Wisconsin School District from Denying Transgender Student Access to Girls’ Restrooms

Doe v. Elkhorn Area School DistrictEducationLGBTQ Equality

Aug 1

On August 1, 2024, a federal court granted a preliminary injunction barring the Elkhorn Area School District (EASD) in Elkhorn, Wisconsin, from denying a transgender 13-year-old girl access to girls’ restrooms at Elkhorn Area Middle School (EAMS) when she returns to school in September.

The student, known in the lawsuit as Jane Doe, filed a federal civil rights lawsuit against EASD, EASD’s Superintendent Jason Tadlock, and EAMS Principal Ryan McBurney on March 25, 2024, challenging EASD’s refusal to permit Jane to use girls’ restrooms as a violation of her civil rights under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The lawsuit alleges that EASD has deliberately ignored controlling case law from the Seventh Circuit — the federal appeals court that covers Wisconsin, Illinois, and Indiana — that established that denying transgender students access to restrooms matching their gender identities is unlawful.

In a 47-page opinion, U.S. District Judge J.P. Stadtmueller of the Eastern District of Wisconsin held that Jane “has shown a high likelihood of success on both her Title IX and Equal Protection Clause claims,” that she would suffer irreparable harm without a preliminary injunction, and that the public interest “is best served when all students are treated equally.” The court explained that the harms Jane has suffered — and would continue to suffer without an injunction — include unwanted attention to her restroom use, lost class time, social isolation and withdrawal, declining school attendance, bullying from classmates, severe distress, and adverse effects on her mental health.

The court concluded that the facts of this case are “materially indistinguishable” from those of the transgender student plaintiffs in Whitaker v. Kenosha Unified School District and A.C. v. School District of Martinsville, in which the Seventh Circuit held that other school districts’ policies barring transgender students from school facilities corresponding to their gender identity violated Title IX and the Equal Protection Clause. The court recognized that the Seventh Circuit squarely held in those cases that “discrimination against transgender persons is sex discrimination for Title IX purposes,” just as it is under other federal civil rights laws.

The order entered by the court enjoins EASD “from enforcing any policy, practice, protocol or custom of the EASD or [EAMS] that denies Plaintiff Jane Doe the ability to access and use girls’ restrooms at EAMS or any other EASD school that she may attend in the future, or otherwise denying or restricting her access to girls’ or women’s restrooms at school or on school trips.” The injunction “will take effect immediately and remain in place for the pendency of this litigation.”

“We’re thrilled for Jane that she can start eighth grade next month knowing that she can go to school without fear of discrimination,” said Joseph Wardenski, one of her attorneys. “It is unfortunate that EASD ignored controlling case law and forced a 13-year-old girl to go to federal court simply to be able to use the restroom. We applaud Jane for her courage to stand up for her rights.”

“I’m glad to see that there’s progress being made towards a growing problem with the discrimination for transgender kids like me,” said Jane Doe, the plaintiff student. “It’s important to me that other students know in the district feel that they can be themselves.”

“I’m very happy that my daughter’s rights are being protected and that the court agrees that she has the right to use girls’ restrooms,” said Jane’s father, referred to in the lawsuit as John Doe. “No 13-year-old should have to go through what EASD did to my daughter simply for wanting to use the same restrooms as other girls.”

Jane Doe is represented by Wardenski P.C. Principal Attorney Joseph Wardenski and Nigel Shelby Civil Rights Litigation Fellow Alexandra Vance. Summer associate José Vallejo-Jimenez made significant contributions to the case. Robert (Rock) Theine Pledl and Victoria Davis Dávila of Davis & Pledl, SC in Milwaukee are co-counsel on the case.