The plaintiff in this case was a 16-year-old rising senior at the George Nelson Temper High School (Temper), which is part of the Kenosha Unified School District No. 1 (KUSD), in Wisconsin. Plaintiff, who was labeled female on his birth certificate but whose gender identity is male, suffers from gender dysphoria, a condition recognized by the American Psychiatric Association. Over the course of several years, despite explanations from the plaintiff and despite receiving several signed letters from the plaintiff’s pediatrician explaining Plaintiff’s condition, KUSD officials repeatedly denied access to facilities matching Plaintiff's gender identity.

Even after hearing from a pediatrician that Plaintiff’s gender identity was male, KUSD told Plaintiff to use either the girls' restroom, or a gender-neutral, single-occupancy bathroom in the school’s office. KUSD refused to change Plaintiff’s name or gender in school records and attendance lists, and the school also initially refused to allow Plaintiff to be nominated as prom king, relenting only after petition and other protests by Plaintiff’s fellow students.

After learning of a lawsuit challenging a school in Virginia for denying transgender students access to bathrooms and other accommodations matching their gender identity, G.G. v. Gloucester School Board, Plaintiff began to use the boys' restrooms at school. In G.G, the United States Department of Justice (DOJ) had issued a statement of interest explaining that it was the agency’s position that Title IX of the Education Amendment of 1972 requires that schools receiving federal funding allow transgender students to use restrooms and other single-sex, multi-occupancy facilities that match their gender identities. When confronted by KUSD officials over Plaintiff’s use of the boys’ restrooms, Plaintiff’s mother explained to them that based on the DOJ’s position, KUSD is required to allow him access to the boys’ restrooms. However, KUSD officials nevertheless maintained that Plaintiff was not allowed to use the boys’ restrooms after that meeting.

In April of 2016, Plaintiff engaged counsel who sent KUSD a letter demanding that Plaintiff be able to use the boys' restroom. When the school refused, Plaintiff filed an administrative complaint with the US Department of Education's Office for Civil Rights, alleging the school policy violated Title IX. Plaintiff later withdrew this complaint to file a suit on July 19, 2016, against KUSD and its superintendent in the U.S. District Court for the Eastern District of Wisconsin, under 42 U.S.C. §1983, 28 U.S.C. § 2201, and Title IX of the Education Amendment (20 U.S.C. §§ 1681 et seq.).

Represented by the Transgender Law Center, along with the civil-rights law firms Relman Dane & Colfax and the Robert Pledl Law Office, Plaintiff argued that KUSD’s discriminatory actions violated Title IX and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. He asked the court to declare that KUSD has violated Title IX and the Fourteenth Amendment and to issue a preliminary and permanent injunction requiring KUSD to take various steps to prevent further discrimination against Plaintiff.

District Judge Rudolph T. Randa was assigned to the case on July 20, 2016, but due to his unavailability, the case was reassigned on August 3, 2016, to Magistrate Judge David E. Jones. Plaintiff did not consent to have a magistrate judge enter final judgment on the matter and so the case was reassigned to Judge Pamela Pepper.

On August 15, 2016, Plaintiff filed an amended complaint using his and his mother's full names because they had already consented to the media using their names. The same day, Plaintiff also filed for a preliminary injunction, asking the court to enjoin KUSD from its discriminatory practices. Attached to the motion were various supporting statements from healthcare professionals along with the US Department of Education's Dear Colleague Letter on Transgender Students. This Dear Colleague letter was issued on May 13, 2016, and told schools that compliance with Title IX entailed treating students consistent with their gender identity (this letter was later rescinded, on February 22, 2017, under the new Trump Administration).

KUSD filed a motion to dismiss the case on August 16, 2016, and the court heard oral arguments on that motion and the preliminary injunction. On September 21, 2016, Judge Pepper denied the defendant's motion to dismiss, and the next day she granted in part Plaintiff's motion for a preliminary injunction. Judge Pepper found that Plaintiff was likely to succeed on the merits and enjoined the school from denying Plaintiff use of the boys' bathroom and from disciplining him in any way for using it. 2016 WL 5239829.

KUSD appealed both decisions to the Seventh Circuit on September 23, 2016, arguing that the two orders were inextricably bound and that the appeals court could not review one without the other (originally the district court had certified the order denying the motion to dismiss for immediate interlocutory appeal, but soon after revoked that certification when it concluded it had erred by including certification language in the order). In the district court, KUSD also moved to stay the preliminary injunction, arguing that it would threaten the "constitutionally privacy interest" of students in the school district. On October 3, 2016, Judge Pepper denied Defendants' motion to stay. 2016 WL 8846573. Litigation continued into discovery throughout the school year. Defendants requested that Plaintiff submit to an independent medical examination. Judge Pepper denied the request as moot after Plaintiff submitted his own request governing an independent medical examination.

On May 30, 2017, the Seventh Circuit upheld the preliminary injunction and denied to review the denial of the motion to dismiss, reasoning that the two issues were not inextricably bound. Notwithstanding the intervening change in position by the Trump Administration, the Seventh Circuit found that Plaintiff was likely to succeed on his Title IX discrimination claim. The court did not reach the question of whether transgender status triggered heightened scrutiny, but the Seventh Circuit did find that Plaintiff was likely to succeed on his Equal Protection Claim on a theory of sex stereotyping. The court also found KUSD's privacy argument was based on sheer conjecture and abstraction and that a "transgender student's presence in the restroom provides no more a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex." 858 F.3d 1034 (Williams, J.). The Defendant appealed this order to the Supreme Court on August 29.

Both parties agreed to a settlement hearing before Magistrate Judge William E Callahan, Jr. on November 1, 2017. Despite the efforts of the parties, mediation did not result in settlement of the Plaintiff’s claims. On November 21, 2017, the case was reassigned to Judge Pamela Pepper for further pretrial proceedings, trial and eventual entry of final judgment.

On January 22, 2018, the parties filed a joint motion to approve the proposed Consent Judgment. The Consent Judgment: required the Defendants to pay $800,000 to the Plaintiff for compensatory damages, attorney’s fees, and costs; permanently enjoined the Defendants from preventing the Plaintiff from using male bathrooms and from taking retaliatory actions; and required the Defendants to inform current board members, district-level administrators, and school level principals and assistant principals of the terms of the permanent injunction.

The Consent Judgment was signed by Judge Pepper on January 23, 2018. The Supreme Court subsequently dismissed the writ for certiorari. 2018 WL 1147062

Ryan Berry - 07/25/2016
Abigail DeHart - 07/05/2017
Mary Kate Sickel - 03/25/2018


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