Dive Brief:
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Lawsuits contesting new state laws and policies keeping transgender students from using bathrooms or locker rooms aligned with their gender identity are progressing in localities across the nation.
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In Wisconsin, a federal district court judge granted a temporary restraining order on July 6 against the Mukwonago Area School District's policy requiring an 11-year-old transgender girl to use the boys' bathroom or a gender-neutral restroom.
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In Idaho, LGBTQ+ civil rights organization Lambda Legal sued in federal court on the same day to block an Idaho law signed in March by Gov. Brad Little that requires "ensuring separate school restrooms and changing facilities on the basis of biological sex." The lawsuit was filed on behalf of a 12-year-old rising 7th grader in Boise School District.
Dive Insight:
The legal challenges come as a slew of recently passed state laws and local policies have taken effect.
In Mukwonago Area School District's case, the incoming 6th-grader has identified as a girl since she was 3 years old and "had used the girls' bathroom without incident since beginning third grade," according to U.S. District Judge Lynn Adelman.
However, in June 2023, Mukwonago Superintendent Joe Koch told the student's mother that would have to change.
The district's "refusal to permit plaintiff to continue using the girls’ bathroom as she has for years has caused plaintiff to suffer severe emotional distress and mental health effects, including thoughts of self-ham, nightmares, embarrassment, social isolation and stigma, and lowered self-esteem," wrote Adelman.
According to the Movement Advancement Project, which tracks facility access bans in schools, at least nine states have passed laws restricting transgender students from using bathrooms and facilities aligned with their gender identity.
While Wisconsin is not among the states that have passed such a law, Mukwonago's decision to enforce such a policy reflects other districts' decisions to do the same.
However, legal outcomes on the issue have been a mixed bag.
In March, the 11th U.S. Circuit Court of Appeals upheld a Florida public school's ban on transgender students using the bathroom matching their gender identify. "The School Board, like many others, maintains a longstanding, unwritten bathroom policy under which male students must use the male bathroom and female students must use the female bathroom," wrote U.S. Circuit Judge Barbara Lagoa in the opinion.
Florida is on the list of states with a law requiring the use of public bathrooms — including in schools — aligning to a person's gender assigned at birth.
The 11th Circuit ruling is opposed to an outcome from the 4th Circuit, which held in 2020 that a public school board in Virginia violated the constitutional rights of a transgender student by not permitting him to use a bathroom consistent with his gender identity.
In that case, Grimm v. Gloucester County School Board, the Supreme Court declined to hear an appeal in 2021 that could have settled these disputes nationally. But given ongoing splits among the courts, it's possible the nation’s highest court will ultimately have to weigh in, according to Fisher Phillips, a national labor and employment law firm that specializes in education, among other industries. The firm advised school districts in March to look to their state and local ordinances for guidance on the issue as they craft related policies.
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