The legal landscape relating to transgender students became more complex over the past two weeks.  Earlier this month, a group of Minnesota students and parents filed a lawsuit against their local school district, challenging the school district’s decision to permit a transgender student to access the restrooms and locker rooms that correspond to the student’s gender identity.  In addition, there were new developments in a different Title IX lawsuit filed by a transgender student against the Kenosha Unified School District.  U.S. District Judge Pepper in the Eastern District of Wisconsin issued back-to-back decisions this week denying the school district’s motion to dismiss the transgender student’s complaint and granting the student’s request for a preliminary injunction, which will temporarily require the school district to allow the student to use the restroom that corresponds to the student’s gender identity.   Taken together, the two cases provide a snapshot of the potentially competing constitutional and statutory rights of individual students, as well as the legal risks that school districts are presented with when considering requests from transgender students relating to restrooms and locker rooms.

In Privacy Matters et al. v. United States Department of Education, et al., a group of Minnesota families represented by the Alliance Defending Freedom filed a lawsuit against their local school district and the Departments of Education and Justice.  The complaint alleges that the school district’s policy decision to grant a transgender girl student access to the private facilities designated for female students (girls’ restrooms and locker rooms) violated the constitutional privacy rights of the other students using those facilities.  The complaint further alleges that the “anxiety, stress, humiliation, embarrassment, intimidation, fear, apprehension and distress the Girl Plaintiffs feel from the Policy is exacerbated by Student X’s behavior in girls’ private facilities.”  Examples of the student’s alleged behavior include commenting on girls’ bodies in the locker room, dancing and “twerking” in the locker room, and purposely changing her clothes by the girls who sought additional privacy in an alternative locker room.  The families are requesting a preliminary and permanent injunction preventing the school district from enforcing its policy and ordering the school district “to permit only females to enter and use the Districts’ girls private facilities, including locker rooms and restrooms, and only males to enter and use the boys’ private facilities, including locker rooms and restrooms.” 

The complaint also alleges that the interpretation of “sex” in the joint guidance issued by the Departments of Education and Justice was unlawful and exceeded the Departments’ authority.  Accordingly, the complaint requests a preliminary and permanent injunction preventing the Departments’ interpretation from having any effect, similar to the preliminary injunction that was granted by the Northern District of Texas in State of Texas et al. v. United States of America et al.  (See our August 22, 2016, Legal Update for more information on that decision.) 

In Whitaker v. Kenosha Unified School District et al., a transgender boy high school student and his parent filed a lawsuit against the Kenosha Unified School District, alleging that the school district’s practice of not treating the student consistent with his gender identity, including the decision not to permit the student to access the boys’ restrooms, violated Title IX.  The student requested a preliminary and permanent injunction directing the district to permit the student to use the boys’ restrooms at school and otherwise treat the student consistent with his gender identity.

The school district filed a motion to dismiss, arguing that Title IX’s protections did not apply to transgender students.  On September 19, 2016, Judge Pepper denied the school district’s motion to dismiss.  On September 20, 2016, Judge Pepper granted a preliminary injunction which will temporarily require the school district to permit the student to use the boys’ restrooms at school.  The district reportedly intends to appeal both decisions. 

Judge Pepper’s decision to grant the preliminary injunction seemed to hinge heavily on the potential irreparable harm to this particular student if he were not given access to the restrooms corresponding to his gender identity.  The decision does not dictate a certain result for individual students in other school districts.  For example, it neither prohibits nor requires school districts to give transgender students access to the facilities that correspond to their gender identity.  The issues of the case–whether Title IX applies to transgender students and whether it was violated in this case–still remain to be answered. 

While these and other cases work their way through the courts, school districts should review their existing facilities and consider developing guidelines or procedures that will govern issues relating to transgender or gender nonconforming students.  We recommend that student needs and requests be addressed on a case-by-case basis, within certain parameters set by the District. 

If you have questions about this Legal Update or would like assistance reviewing or drafting procedures relating to gender nonconforming students,  please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, or Gary Ruesch at gruesch@buelowvetter.com or 262-364-0263, or your Buelow Vetter attorney.