A transgender student who sued the Mukwonago Area School District can continue using the bathroom corresponding with their gender identity, after the U.S. Court of Appeals upheld a lower court ruling that barred the district from enforcing its bathroom policy against the student until the case is decided.
But the district says it will continue enforcing its bathroom policy — which requires students to use bathrooms and locker rooms corresponding with the sex they were assigned at birth — for everyone else while the case is being decided.
The district had appealed U.S. District Judge Lynn Adelman’s July 2023 preliminary injunction that prohibited the school district from enforcing its bathroom policy against the student who sued. The district claimed its due process rights were violated because Adelman did not hold a hearing before issuing his decision.
In its June 12 decision, the U.S. Court of Appeals said a hearing presenting evidence is not always required prior to issuing a preliminary injunction and that there does not need to be a hearing if there are no factual disputes. The district did not request a hearing or identify any factual issues that needed addressing, the court said.
However, the court acknowledged that the U.S. Supreme Court’s upcoming ruling on U.S. v. Skirmetti regarding the legality of restricting gender-affirming care for minors may affect the analysis of the student’s claims, but said for now the court’s precedent remains in effect.
Mukwonago Area School District superintendent Joe Koch said in an email the district “will continue to defend the legality of its restroom/locker room use policy and stand up for the values of our community” as the case returns to a lower court.
Koch said in a separate email that in the meantime, the district will continue following its policy, which he said has been in place for two school years now.
What led to the lawsuit being filed?
The student, a transgender girl, and her mother filed a lawsuit in June 2023 when the student was 11 years old. According to the lawsuit, the student had used the girls’ bathroom without incident from first grade until fifth grade.
In April 2023, parents called and emailed school officials with concerns about the student’s use of the girls’ bathroom. The student then began experiencing bullying. The district’s school board responded by approving a policy in June 2023 requiring students to use restrooms and locker room facilities consistent with their original sex assigned at birth while allowing for exceptions through consulting a student’s family and district staff.
During summer school, and before the board approved the policy, the student was told that she had to either use the boys’ bathroom or a gender neutral alternative but not the girls’ bathroom. When the student used the girls’ bathroom, a staff member removed the student from class and the student contacted her mother.
On June 26, 2023, the Mukwonago School Board passed the policy. The next day, attorneys for the student and her mother wrote to Mukwonago Area School District superintendent Joe Koch. In the letter, the attorneys said the policy violated the student’s rights and demanded the district end its new policy and allow the student to use the girls’ bathroom.
In response June 27, 2023, the district said it was providing the student with “support and accommodations” such as “support from a trusted adult” and “the option to use the boys’ restroom or a gender-neutral restroom.” It also wanted to talk with the family first “and carry out the processes outlined in its policy.” The student and her mother filed a lawsuit two days later, along with an emergency motion seeking a temporary restraining order and preliminary injunction.
Timeline of the legal proceedings
After the lawsuit was filed, the district filed a response, but did not present any evidence supporting its appeal or request a hearing to present evidence, and it did not dispute the evidence from the student and her mother, the Court of Appeals’ ruling said.
On July 6, 2023, Adelman issued a temporary restraining order prohibiting the district from denying the student access to the girls’ bathroom or disciplining her for using it while the lawsuit is being decided. He converted the temporary restraining order to a preliminary injunction five days later.
In his July 11, 2023 ruling, Adelman said the student’s claims were likely to succeed and that the student would suffer irreparable harm if the district’s policy continued to be enforced. After the U.S. Court of Appeals reaffirmed the Whitaker decision in the Martinsville case three weeks later, the district filed its appeal.
The district also asked the U.S. Court of Appeals to overrule two other court cases.
One was a 2017 case out of Kenosha in which a 17-year-old transgender boy won a lawsuit in which the student was allowed to use the boys’ bathroom after being denied access previously. The other case was decided in 2023 in Martinsville, Indiana. The U.S. Court of Appeals affirmed lower court rulings that said a transgender middle school student should be allowed to use the boys’ restroom. In January 2024, the U.S. Supreme Court declined to rule on the issue, which upheld the U.S. Court of Appeals and lower court rulings.
In its June 12 decision, the appeals court declined to revisit the Whitaker and Martinsville cases.
Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.
This article originally appeared on Milwaukee Journal Sentinel: Appeals court upholds trans student’s bathroom access in Mukwonago