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Case Name W. v. Kenosha Unified School District No. 1 Board of Education ED-WI-0002
Docket / Court 2:16-cv-00943 ( E.D. Wis. )
State/Territory Wisconsin
Case Type(s) Education
Special Collection Transgender Bathroom Access Cases
Attorney Organization Relman, Dane & Colfax
Case Summary
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. The plaintiff, who was labeled female on his birth certificate but whose gender identity is male, suffers ... read more >
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. The 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 the plaintiff's gender identify.

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

After learning of a lawsuit challenging a school in Virginia for denying transgender student’s access to bathrooms and other accommodations matching their gender identity, G.G. v. Gloucester School Board, the 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 his use of the men’s restrooms, the plaintiff’s mother explained to them that based on the DOJ’s position, KUSD is required to allow him access to the men’s restrooms. However, KUSD officials nevertheless maintained that the plaintiff was not allowed to use the men’s restrooms after that meeting.

In April of 2016, the plaintiff engaged counsel who sent KUSD a letter demanding that the plaintiff be able to use the boys' restroom. When the school refused, the 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, the 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 the 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. The 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, the 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, the 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 the plaintiffs motion for a preliminary injunction. Judge Pepper found that the plaintiff was likely to succeed on the merits and enjoined the school from denying the 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 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 the defendants' motion to stay. 2016 WL 8846573. Litigation continued into discovery throughout the school year.

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 the plaintiff was likely to succeed on his Title IX discrimination claim. The court did not reach the question of whether transgender status triggers heightened scrutiny, but did find that the 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.).

As of July 5, 2017, the matter is ongoing in district court.

Ryan Berry - 07/25/2016
Abigail DeHart - 07/05/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Content of Injunction
Preliminary relief granted
Defendant-type
Elementary/Secondary School
Discrimination-basis
Gender identity
Sex discrimination
General
Gay/lesbian/transgender
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.
Defendant(s) Kenosha Unified School District No. 1
Plaintiff Description Transgender male student denied access to school facilities and activities matching his gender identity.
Indexed Lawyer Organizations Relman, Dane & Colfax
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Case Ongoing Yes
Additional Resources
click to show/hide detail
  Groundbreaking 7th Circuit Ruling in Favor of Ash Whitaker, Transgender Student Seeking Access to Correct Bathroom
Date: May 30, 2017
By: Transgender Law Center (Transgender Law Center)
[ Detail ] [ External Link ]

  Dear Colleague Letter [rescinding prior letters relating to bathroom access for trans students]
U.S. Department of Education
Date: Feb. 22, 2017
By: Sandra Battle & T.E. Wheeler (U.S. Department of Education)
[ Detail ] [ PDF ] [ External Link ]

  Gloucester County School Board v. G.G. [Scotusblog page]
Scotusblog.com
Date: Feb. 7, 2017
(Scotusblog)
[ Detail ] [ External Link ]

  Montgomery Public Schools
http://www.bazelon.org
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Blackman. v. District of Columbia
http://www.bazelon.org/blackman-v-district-of-columbia/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  S.S. v. Springfield Public Schools
http://www.bazelon.org/springfield-massachusetts-school-system/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Doe v. Pasadena Unified School District
http://www.bazelon.org/doe-v-pasadena-unified-school-district/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  A.J. v. Cesar Chavez Public Charter Schools
http://www.bazelon.org/a-j-v-cesar-chavez-public-charter-schools-et-al/
Date: 2017
By: Bazelon Center (Bazelon Center)
[ Detail ] [ External Link ]

  G.G. V. Gloucester County School Board -- ACLU's Case Page
ACLU
Date: Oct. 16, 2016
By: ACLU (ACLU)
[ Detail ] [ External Link ]

  Dear Colleague Letter on Transgender Students
www.ed.gov
Date: May 13, 2016
By: Catherine E. Lhamon and Vanita Gupta (U.S. Department of Justice Civil Rights Division)
[ Detail ] [ PDF ] [ External Link ]

  Examples of Policies and Emerging Practices for Supporting Transgender Students
www.ed.gov
Date: May 2016
By: United States Department of Education (United States Department of Education)
[ Detail ] [ PDF ] [ External Link ]

  Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance
http://www2.ed.gov/about/offices/list/ocr/index.html
Date: Sep. 17, 2008
By: United States Department of Education—Office of Civil Rights (U.S. Department of Justice)
[ Detail ] [ External Link ]

Docket(s)
2:16-cv-00943 (E.D. Wis.)
ED-WI-0002-9000.pdf | Detail
Date: 06/30/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
ED-WI-0002-0001.pdf | Detail
Date: 07/19/2016
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint [ECF# 12]
ED-WI-0002-0002.pdf | Detail
Date: 08/15/2016
Source: PACER [Public Access to Court Electronic Records]
Decision and Order Granting in Part Motion for Preliminary Injunction [ECF# 33] (E.D. Wis.)
ED-WI-0002-0003.pdf | Detail
Date: 09/22/2016
Source: PACER [Public Access to Court Electronic Records]
Order Denying Defendants' Civil L.R. 7(h) Expedited, Nondispositive Motion to Stay Preliminary Injunction Pending Appeal [ECF# 46] (E.D. Wis.)
ED-WI-0002-0004.pdf | Detail
Date: 10/03/2016
Source: PACER [Public Access to Court Electronic Records]
Order and Opinion [Ct. of App. ECF# 00713017988 ]
ED-WI-0002-0005.pdf | Detail
Date: 06/21/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Pepper, Pamela (E.D. Wis.)
ED-WI-0002-0003 | ED-WI-0002-0004
Randa, Rudolph Thomas (E.D. Wis.)
ED-WI-0002-9000
Rovner, Ilana Kara Diamond (N.D. Ill., Seventh Circuit)
ED-WI-0002-0005
Williams, Ann Claire (N.D. Ill., Seventh Circuit)
ED-WI-0002-0005
Wood, Diane Pamela (Seventh Circuit)
ED-WI-0002-0005
Plaintiff's Lawyers Allen, Michael Gerhart (District of Columbia)
ED-WI-0002-0001 | ED-WI-0002-0002 | ED-WI-0002-9000
Buchert, Sasha J. (California)
ED-WI-0002-0002 | ED-WI-0002-9000
Friedman, Robert D. (District of Columbia)
ED-WI-0002-9000
Meerkamper, Shawn Thomas (California)
ED-WI-0002-0002 | ED-WI-0002-9000
Pennington, Alison (California)
ED-WI-0002-0001 | ED-WI-0002-0002 | ED-WI-0002-9000
Pledl, Robert Theine (Wisconsin)
ED-WI-0002-0001 | ED-WI-0002-9000
Turner, Ilona Margaret (California)
ED-WI-0002-0001 | ED-WI-0002-0002 | ED-WI-0002-9000
Wardenski, Joseph J (District of Columbia)
ED-WI-0002-0001 | ED-WI-0002-0002 | ED-WI-0002-9000
Defendant's Lawyers Graf, Aaron J. (Wisconsin)
ED-WI-0002-9000
Sacks, Jonathan E. (Wisconsin)
ED-WI-0002-9000
Stadler, Ronald S. (Wisconsin)
ED-WI-0002-9000

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