Last Tuesday, the Kenosha Unified School District (“KUSD” or “the District) became the first Wisconsin school district to be sued under federal law by a transgender student alleging the District and its representatives have taken a series of discriminatory actions against the student based on his sex, gender identity, and transgender status.

The complaint notes that, although designated a female on his birth certificate, A.W. began identifying as a male in middle school.  At the beginning of his sophomore year at Tremper High School, A.W. informed his teachers and peers of his gender identity, requesting that he be referred to using male pronouns and by a new name.  While A.W.’s complaint notes that he has been diagnosed with gender dysphoria, A.W. does not bring any cause of action based on disability discrimination.  His complaint alleges violations of Title IX and the Equal Protection Clause of the 14^th Amendment regarding discrimination on the basis of sex.

Allegations Raised by A.W.

Included in A.W.’s complaint against the Kenosha School District and its representatives, the following six incidents of alleged discrimination were provided:

1. Restricted access to locker room facilities  – A.W. alleges that he and his family met with representatives and requested that A.W. be permitted to use the boys’ restroom at school.  However, as alleged in the complaint, in March 2015 A.W. was informed that the District would only permit his use of the girls’ restroom facilities or the single-user, gender neutral restroom in the school office.  A.W. notes that this policy caused deep emotional distress, aggravated physical illnesses related to stress and symptoms associated with gender dysphoria, and lead A.W. to utilize the boys restroom exclusively during the 2015-2016 academic year in violation of the District’s instruction and yet with no consequences or discipline. 
   
   In May 2016, the Department of Justice and the Department of Education (jointly “the Departments”) issued a joint letter addressing their position on a number of practices related to potential discrimination based on sex in violation of Title IX.  As it relates to restroom and locker room use, the Departments’ position is that although a school may provide separate facilities on the basis of sex, they must allow students to access facilities consistent with the gender identity.  On its face, it appears the complaint alleges actions by KUSD that the Departments believe to be discriminatory.
2. District staff monitoring restroom usage  – A.W. alleges that District administrators sent an e-mail to all of the District security guards that instructed them to notify any members of administration if they spotted students who appeared to be going in the “wrong restroom.”  A.W. believes that this e-mail was directed to his use of the restroom facilities.
   
   While A.W. does not reference any disciplinary actions or further discussion from the school security guards for his use of restroom facilities, this practice may not adhere to the Departments’ interpretation of Title IX.
3. Use of name and pronouns  – The complaint identifies one specific member of KUSD staff who exclusively referred to A.W. by his birth name.  The individual said that the only way the school could address him with his new name and male pronouns, was if he were to have his gender changed in official school records.  As a result of the administrations’ failure to identify A.W. by his new name and male pronouns, A.W. became embarrassed and concerned about the effect of these meanings on his academic performance and ability to participate in extracurricular activities.
   
   The Departments specifically expressed that under Title IX a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.  Further, the Departments note that they have resolved Title IX investigations with agreements committing individual school staff and contractors to use pronouns and names consistent with a transgender student’s gender identity.  Any resolution of the matter in KUSD would likely include a similar agreement between the District and the student.
4. Issuance of wrist bands to identify transgender students  – The complaint alleges that KUSD proposed a practice in May, 2016, utilizing a bright green wrist band to identify students who are transgender.  A.W. alleges that this practice would single out transgender students for additional scrutiny, stigma, and potentially harassment or violence.  Additionally, it would require students to violate their privacy by revealing their transgender status to others.  This practice as alleged in the complaint is to be adopted at the beginning of the upcoming school year and is still in place to the best knowledge of the plaintiff.
   
   The KUSD website indicates that the District does not have a practice or policy requiring any student to wear a wrist band for monitoring for any purpose or for any reason whatsoever.  Additionally, Districts have a responsibility to provide a safe and nondiscriminatory environment for all students.
5. Overnight school sponsored accommodations  – A.W. participated in a five-day school sponsored summer orchestra camp from June 12 to June 16 on the University of Wisconsin-Oshkosh campus and was required to stay in a double bedroom suite by himself.  A.W. indicates that prior to the camp he had signed up to stay in a boys’ suite with one of his best friends, a male student.  The KUSD teacher accompanying students on the trip told A.W. that under Kenosha Trempers policy, he could not stay with other boys during the trip.  The teacher told A.W. he would have to stay in a suite with girls or alone in a suite.  A.W. alleges that the school’s decision was based on a perception that he might engage in sexual activity with another boy.
   
   The Departments address housing and overnight accommodations specifically in its May letter.  The Departments’ note that Title IX permits a school to provide separate housing on the basis of sex.  However, Title IX as interpreted by the Departments, requires a school to allow transgender students access to housing consistent with their gender identity and may not require transgender students to stay in single occupancy accommodations or to disclose personal information when not required of other students.  If a student requests a single occupancy accommodation, a school may honor a student’s request if it so chooses.
6. Nomination for junior prom king – In March of 2016, A.W. alleges that KUSD staff informed him that he could be on the spring prom court, but only as a candidate for prom queen.  Students organized and participated in a sit-in at the high school’s main office to show support for A.W.  Eventually KUSD reversed its position and permitted A.W. to run for prom king. 
   
   While the Departments did not specifically address the participation in school dances in their May “Dear Colleague” letter, they noted that unless expressly authorized by Title IX, a school may not segregate or otherwise distinguish students on the basis of their sex in any school activities or the application of any school rule.  Further, a school may not discipline or exclude students from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical emotions of masculinity or femininity.

Conclusion

It is important to remember that this lawsuit does not include any alleged violations of Wisconsin’s pupil nondiscrimination statute, Wis. Stat. § 118.13.  This action filed in the Eastern District of Wisconsin is a case of first impression.  Certainly, the plaintiff believes that courts here in Wisconsin will follow the guidance from the Departments, however, at this point we do not have any case law to provide us much guidance.

Districts around the state are wrestling with many difficult issues as it relates to the education of transgender students.  Most of the recent actions around the country against school districts have resulted in settlement agreements in which the District agrees to adhere to the requirements of Title IX as interpreted by the Departments and to report to the Departments its policies and progress with transgender students.  We will certainly be monitoring this lawsuit so that school districts around Wisconsin can be operating in a manner consistent with Federal law.