Here & Now

The Court Fight Over Bathroom Access in Mukwonago Schools

Frederica Freyberg:

A similar decision is also before the Milwaukee County Board of Supervisors where the law allows increasing the existing sales tax.

Turning to education, a federal judge issued a preliminary injunction against the Mukwonago Area School District this week for a policy that states students can only use the bathroom according to each student’s original sex assigned at birth. The catalyst for the policy arose from an 11-year-old trans girl in the district and a sudden backlash from other parents. Marisa Wojcik has the story.

Jane Doe # 2:

I got a phone call from the school letting me know that there was parents inquiring about my child.

Marisa Wojcik:

This is Jane Doe # 2. Her daughter, Jane Doe # 1.

Jane Doe # 2:

Wanting to know if my child was a boy, wanting to know about the genitalia in my child’s pants, like asking questions that are really inappropriate.

Marisa Wojcik:

The court is using pseudonyms to prevent further harassment. Her child is an 11-year-old girl at the Mukwonago Area School District. Her daughter was also assigned male at birth but started identifying and living as a girl at home since the age of three.

Jane Doe # 2:

It’s just who she is and it’s who she’s been since she was really little and she lived as a girl at home and at school tried really hard to just be who everyone was expecting her to be. And she came home from school one day and said, “I can’t do this anymore. I can’t continue to live my life as this boy. It’s not who I am.”

Marisa Wojcik:

Despite years of her daughter using the girls’ bathroom at school, suddenly it was an issue. A May school board meeting took public comment on the matter.

Jane Doe # 2:

And they moved it from the normal area at the district office to the high school gymnasium. They were expecting a lot of people to show up. They called the police department. Parents came in and they were essentially saying I’m not okay with this. You don’t get to do this What about my kids?

Man:

Difference between a boy and a girl.

Woman:

Our daughter’s rights need to be vehemently protected from this pervasive and false ideology that children can pick their gender.

Another Woman:

I’m here to say that the female sex remains in the female bathrooms and locker rooms and the male sex remains in the male bathrooms and locker rooms.

Jane Doe # 2:

My daughter using that bathroom does not violate your daughter’s rights. Nothing about my daughter being in the bathroom, in the building, nothing violates your child’s rights because my child exists.

Man:

Call this meeting to order.

Marisa Wojcik:

A May school board meeting took public comment on the matter. A June school board meeting passed a policy stating students must use the bathroom according to each student’s original sex assigned at birth.

Jane Doe # 2:

I was at the board meeting and listening to all of these and I just cried. I could not believe that this is what they were doing.

Marisa Wojcik:

She sought support from an attorney who has been through this before. In Whitaker v. Kenosha Unified School District, Alexa Milton represented a trans boy who was prevented from using the boys’ bathroom.

Alexa Milton:

We thought it was important to take action to make sure that that precedent was upheld and that our client could exercise those rights that the court has said she has.

Marisa Wojcik:

The district contends the safety and privacy of the other students using the bathroom justifies their policy.

Alexa Milton:

This abstract idea that somebody else’s privacy is being threatened is not enough to justify that. We all use the bathrooms every day in public places where there are other people in the bathroom and that’s your privacy interest that we have isn’t more or less implicated based on the person in the stall next door being transgender. There hasn’t been any threat to the safety or privacy of other students. The threat has been to the safety and privacy of our client.

Marisa Wojcik:

In a brief, the district argues the mother and daughter have not availed themselves of less drastic solutions to effectively address the present situation. They stated Board Policy 5514 requires a team of district staff to consider exceptions or accommodations to this requirement on a case-by-case basis. The alternative to the student having to use the boys’ bathroom was offering a gender-neutral bathroom.

Alexa Milton:

Offering a gender-neutral alternative if you are requiring the trans student to use it or use a bathroom not corresponding to their gender identity doesn’t make the policy non-discriminatory. You’re still requiring something of that transgender student that you aren’t requiring of any other student.

Jane Doe # 2:

You’re endangering my child every time you try to force her into a different bathroom because you’re singling her out. You’re telling everybody she’s different, and that puts a target on her back.

Marisa Wojcik:

The district also said they vehemently refute any discrimination and strongly disagree with the baseless assertion that the policy will cause her irreparably harm.

Alexa Milton:

Our client has been facing increasing bullying and harassment at school since all of this started this spring.

Jane Doe # 2:

She has this constant worry of who is watching me today. Who is going to follow me today. She’s voiced concern about if kids are going to hurt her in the bathroom. She’s concerned about people pulling her out of a restroom or people, you know, pushing her into the restroom she should be using.

Marisa Wojcik:

On July 11, federal Judge Lynn Adelman ruled in favor of the student and granted an injunction against the school policy. The district declined to be interviewed. In a statement, they wrote, the district will continue to defend our policy and move forward with an appeal of this injunction.

Alexa Milton:

I think it’s important to keep in mind that we’re talking about a kid.

Jane Doe # 2:

She’s an amazing kid. She is funny and she’s silly and she likes to draw. She’s inquisitive and she loves science and she’s really involved in STEM things. She likes doing girly things and glitter and sequins and she’s just like every other 11-year-old kid, every other 11-year-old girl out there.

Marisa Wojcik:

Reporting from Mukwonago, I’m Marisa Wojcik for “Here & Now.”