Judge grants temporary restraining order in Mukwonago bathroom lawsuit

A federal judge has granted a temporary restraining order against the Mukwonago Area School District. preventing the district from enforcing a recently adopted restroom and locker room policy. The policy, approved June 26, requires students to use restroom and locker room facilities consistent with the sex they were assigned at birth.

An 11-year-old transgender student and her mother filed a lawsuit against the district and sought the restraining order while the suit is pending.

U.S. District Judge Lynn Adelman granted the temporary restraining order July 6. The action allows the student, who identifies as a girl, to access girls' restrooms at school and school-sponsored events and prohibits the district from imposing discipline against the student for use of those restrooms.

Adelman said in his decision that the student's lawsuit is likely to succeed. based on the case of Whitaker v. Kenosha Unified School District, in which the Seventh Circuit Court of Appeals held that both Title IX and the equal protection clause "prevent discrimination against transgender individuals under circumstances identical to those present here."

The Whitaker case, which was decided in 2017, allowed Ash Whitaker, who was a transgender student at Kenosha Tremper High School at the time, to use the boys' bathroom at the school after being previously denied. Whitaker was born female but identifies as a male.

"The court held, among other things, that a 'policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance.' The court further held that '[p]roviding a gender-neutral alternative is not sufficient to relieve the School District fromliability, as it is the policy itself which violates [Title IX].' These holdings give plaintiff a likelihood of success on her claims," Adelman wrote.Adelman also said the student in the Mukwonago case will "suffer significant irreparable harm without a temporary restraining order." He said the defendants had begun enforcing the policy against the student, causing the student "to experience emotional and mental harms." He added that the district "will not suffer significant harm" if the restraining order were granted.

"The only reason the defendants have provided for the policy is that some district parents and community members have expressed unspecified 'concerns' regarding plaintiff’s use of the girls’ bathroom. But plaintiff has used the girls’ bathroom at her school for years prior to the adoption of the policy, and no harm has resulted. Further, only a few days of summer school remain, and it is exceedingly unlikely that any harm could occur during this time," Adelman wrote.

Lawsuit filed

The decision came after the student and her mother filed a lawsuit June 30 in the Eastern District of Wisconsin federal court against the district and its superintendent, Joe Koch, days after the school board approved its bathroom/locker rom policy.

According to the suit, under the policy, the district was prohibiting the student from using school restrooms that align with her gender identity, the girls' restrooms.

One of the family's attorneys, Alexa Milton, of Washington, D.C.-based law firm Relman Colfax, praised Adelman's decision.

"We're really pleased that the court recognized so clearly that our client's rights were being violated and that action was needed right away. We think this will give her the chance to enjoy the rest of her summer program, and we're looking forward to protecting this victory as the litigation continues," Milton said in a July 7 phone interview.

The district's attorneys, Corinne Duffy and Joel Aziere, of Buelow Vetter Olson & Vliet, did not immediately respond to phone and email messages.

In response to Adelman's decision, Koch said the Mukwonago Area School District will continue to defend its restroom and locker room policy "in the interest of protecting the safety, privacy and wellness of all students."

"We will also continue to keep the community informed as this case proceeds through the litigation process," Koch said in a July 6 letter to district residents and parents informing them of Adelman's decision.

Student seeks relief from new district policy

According to the lawsuit, the student was born a male but started identifying as a girl when she was a toddler. She began presenting as a girl in first grade and started using the girls' bathroom at school at that time. She was diagnosed with gender dysphoria in 2022.

The student and her mother moved to the district before the student started third grade at Prairie View Elementary School. From third to fifth grade, the student used the girls' bathrooms at the school "without incident or controversy, and with support from the adults in the school," the suit said.

Since May, though, the lawsuit claimed that the district and Koch have denied the student access to the girls' restrooms at school, requiring her to use boys' or mens' restrooms or "a single-occupancy purportedly gender-neutral restroom," and threatening discipline if the student continued to use the girls' restroom at summer school. The lawsuit claims the actions violate Title IX and the equal protection clause of the 14th Amendment.

The lawsuit said that the bathrooms the student was told to use were on the first floor, far from her classrooms on the second floor and the girls' bathrooms that were either right across the hall or around the corner from the student's classroom.

The lawsuit also said the "gender-neutral" single-occupancy classrooms were labeled by gender, male and female, are typically used by staff members and are in the administrative offices and health room. In addition, the student said she is uncomfortable using those restrooms, citing the time and inconvenience and potential for missing class, feeling stigmatized and isolated by being forced to use a separate bathroom apart from her classmates and feeling afraid of being asked by other students why she's using those restrooms, the lawsuit said.

The lawsuit asks for a judgment declaring the district is violating Title IX and the equal protection clause and for permanent injunction preventing the district from prohibiting the student from using the girls' restroom at school and at school-sponsored events, as well as unspecified compensatory damages and other relief.

School district says it is providing supportive measures

In response to the lawsuit, the school district said its new restroom and locker room policy requires district staff to consider exceptions or accommodations on a case-by-case basis in consultation with the student, the student's parents and several school officials.

The district said it has supported the student by providing access to a trusted adult during the summer school day, support from a trusted adult in response to the new board policy violations, the option to use the boys' restroom or a gender-neutral restroom and a map and a tour of the Mukwonago High School building to help the student become familiar with the restrooms' locations. Summer school classes are held at Mukwonago High School.

The district said it has provided, and will continue to provide for the final weeks of summer school, those supportive measures despite what it says is the student and parent's refusal to engage with the district.

On one occasion, after meeting with staff regarding bathroom usage, the student "was able to self-regulate, demonstrating the efficacy of the support measures in place and negating the notion that irreparable harm has occurred or would in the future," according to the district.

It also argued that the difference between the Whitaker case and the Mukwonago case is the age difference of the students and the different legal environment today.

"For example, a recent Eleventh Circuit case has created a split among the federal appellate courts, setting the stage for resolution at the Supreme Court," the district's response said.

The district also said "a key component" of the Eleventh Circuit's opinion "lends considerable support" to its position, which referred to the court referencing "Title IX's implementing regulations, which allow for 'separate toilet[s], locker room[s], and shower facilities on the basis of sex.'"

The district also argued that a temporary restraining order was not an appropriate solution, calling it an "extraordinary remedy' that "is never awarded as a matter of right."

No hearing has been set yet for the lawsuit, according to online court records.

Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.

This article originally appeared on Milwaukee Journal Sentinel: Judge grants temporary restraining order in Mukwonago bathroom lawsuit