UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

A.W., a minor, by his mother and next friend, M.W.,

Plaintiff,
v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS, in her official capacity as Superintendent of the Kenosha Unified School District No. 1,

Civ. Action No. 2:16-cv-00943 COMPLAINT

Defendants.

INTRODUCTION 1. Plaintiff A.W., a 16-year-old boy, is a rising senior at George Nelson Tremper High School (“Tremper”) in the Kenosha Unified School District No. 1 (“KUSD”) in Kenosha, Wisconsin. A.W. is a boy. He is also transgender. A.W. was assumed to be a girl when he was born, and was designated “female” on his birth certificate, but has a male gender identity and lives as a boy in all aspects of his life. A.W.’s family, classmates, medical providers, and others recognize A.W. as a boy, respect his male gender identity, and support his right to live and be treated consistent with that gender identity. 2. Defendants Kenosha Unified School District No. 1 Board of Education (the “Board”), Superintendent Sue Savaglio-Jarvis, and their agents, employees, and representatives, have repeatedly refused to recognize or respect A.W.’s gender identity and have taken a series of discriminatory and highly stigmatizing actions against him based on his sex, gender identity, and transgender status. The actions, as described more fully herein, have included (a) denying him

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access to boys’ restrooms at school and requiring him to use girls’ restrooms or a singleoccupancy restroom; (b) directing school staff to monitor his restroom usage and to report to administrators if he was observed using a boys’ restroom; (c) intentionally and repeatedly using his birth name and female pronouns, and failing to appropriately inform substitute teachers and other staff members of his preferred name and pronouns, resulting in those staff referring to him by his birth name or with female pronouns in front of other students; (d) instructing guidance counselors to issue bright green wristbands to A.W. and any other transgender students at the school, to more easily monitor and enforce these students’ restroom usage; (e) requiring him to room with girls on an orchestra trip to Europe and requiring, as a condition of his ability to participate in a recent overnight school-sponsored orchestra camp held on a college campus, that he stay either in a multi-room suite with girls, or alone in a multi-room suite with no other students, while all other boys shared multi-room suites with other boys; and (f) initially denying him the ability to run for junior prom king, despite being nominated for that recognition based on his active involvement in community service, instructing him that he could only run for prom queen, and only relenting and allowing him to run for prom king after a protest by many of those same classmates.
3. Through these actions, Defendants have discriminated against A.W. on the basis of sex, including on the basis of his gender identity, transgender status, and nonconformity to sex-based stereotypes, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and on the basis of sex and transgender status in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Defendants’ actions have denied A.W. full and equal access to KUSD’s education program and activities on the basis of his sex.
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4. Plaintiff, through his mother and next friend, M.W., brings this action against Defendants based on these unlawful and discriminatory actions.
5. Plaintiff seeks a declaratory judgment, preliminary and permanent injunctive relief, and damages resulting from Defendants’ discriminatory actions.
PARTIES 6. Plaintiff A.W. is a 16-year-old boy. He was born in 1999. He resides in Kenosha, Wisconsin and is a student at Tremper High School, a public high school in the Kenosha Unified School District No. 1. He will begin his senior year at Tremper on September 1, 2016. 7. M.W. is A.W.’s mother and brings this action as his next friend. M.W. resides in Kenosha, Wisconsin and is employed by the Kenosha Unified School District No. 1 as a high school teacher at Tremper. 8. Defendant Kenosha Unified School District No. 1 Board of Education is a sevenmember elected body responsible for governing the Kenosha Unified School District No. 1, a public school district serving over 22,000 students in kindergarten through 12th grade who reside in the City of Kenosha, Village of Pleasant Prairie, and Town and Village of Somers. The Board derives its authority to govern KUSD directly from the Wisconsin Constitution and state statutes. The school district is a recipient of federal funds from the U.S. Department of Education, the U.S. Department of Agriculture, and the U.S. Department of Health and Human Services, and, as such, is subject to Title IX of the Education Amendments of 1972, which prohibits sex discrimination against any person in any education program or activity receiving Federal financial assistance. The Board designates responsibility for the administration of KUSD to its Superintendent of Schools, currently Dr. Sue Sarvaglio-Jarvis, who oversees a number of
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district-level administrators. KUSD operates 42 schools, including six high schools. One of the high schools is Tremper, a 1,695-student public high school located in Kenosha, serving students in grades 9 through 12. Tremper’s administration includes a principal and three assistant principals. The Board is vicariously liable for the acts or omissions of its employees, agents, and representatives, including those of the other Defendant Savaglio-Jarvis and other Tremper administrators, staff, and volunteers.
9. Defendant Sue Savaglio-Jarvis is the Superintendent of the Kenosha Unified School District and is sued in her official capacity. At all times relevant to the events described herein, Savaglio-Jarvis acted within the scope of her employment as an employee, agent, and representative of the Board. In such capacity, she carried out the discriminatory practices described herein (a) at the direction of, and with the consent, encouragement, knowledge, and ratification of the Board; (b) under the Board’s authority, control, and supervision; and (c) with the actual or apparent authority of the Board.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1343(a)(3), and is authorized to order declaratory relief under 28 U.S.C. §§ 2201 and 2202. 11. Venue is proper in the Eastern District of Wisconsin under 28 U.S.C. § 1391(b) because the claims arose in the District, the parties reside in the District, and all of the events giving rise to this action occurred in the District.
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FACTS Gender Identity and Gender Dysphoria 12. Sex is a characteristic that is made up of multiple factors, including hormones, external physical features, internal reproductive organs, chromosomes, and gender identity. 13. Gender identity—a person’s deeply felt understanding of their own gender—is the determining factor of a person’s sex. Gender identity is often established as early as two or three years of age, though a person’s recognition of their gender identity can emerge at any time. There is a medical consensus that efforts to change a person’s gender identity are ineffective, unethical, and harmful. A person’s gender identity may be different from or the same as the person’s sex assigned at birth. 14. The phrase “sex assigned at birth” refers to the sex designation recorded on an infant’s birth certificate. For most people, gender identity aligns with the person’s sex assigned at birth, a determination generally based solely on the appearance of a baby’s external genitalia at birth. For transgender people, however, the gender they were assumed to be at birth does not align with their gender identity. For example, a transgender boy is a person who was assumed to be female at birth but is in fact a boy. A transgender girl is a person who was assumed to be a boy at birth but is in fact a girl. 15. Gender Dysphoria is a condition recognized by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-5”). It refers to clinically significant distress that can result when a person’s gender identity differs from the person’s assumed gender at birth. If left untreated, Gender Dysphoria may result in profound psychological distress, anxiety, depression, and even self-harm or suicidal ideation.
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16. Treatment for Gender Dysphoria is usually pursuant to the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards of Care”), published by the World Professional Association for Transgender Health (“WPATH”) since 1980. WPATH is an international, multidisciplinary, professional association of medical providers, mental health providers, researchers, and others, with a mission of promoting evidence-based care and research for transgender health, including the treatment of Gender Dysphoria. WPATH published the seventh and most recent edition of the Standards of Care in 2011.
17. Consistent with the WPATH Standards of Care, treatment for Gender Dysphoria consists of the person “transitioning” to living and being accepted by others as the sex corresponding to the person’s gender identity. A key stage in that process is a “social transition,” in which the individual lives in accordance with his gender identity in all aspects of life. A social transition, though specific to each person, typically includes adopting a new first name, using and asking others to use pronouns reflecting the individual’s true gender, wearing clothing typically associated with that gender, and using sex-specific facilities corresponding to that gender. Failing to recognize or respect a transgender person’s gender is contrary to established medical protocols and can exacerbate an individual’s symptoms of Gender Dysphoria.
18. Medical treatments, such as hormone therapy or surgical procedures, may also be undertaken to facilitate transition and alleviate dysphoria, typically after an individual’s social transition. Under the WPATH Standards of Care, living full-time in accordance with one’s gender identity in all aspects of life for at least one year is a prerequisite for any medical interventions. Medical treatments are not necessary or appropriate in all cases.
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19. A social transition requires that a transgender boy be recognized as a boy and treated the same as all other boys by parents, teachers, classmates, and others in the community. This includes being referred to exclusively with the student’s new name and male pronouns, being permitted to use boys’ restrooms and overnight accommodations on the same footing as other male students, and having the right to keep information about the student’s transgender status private. Singling out a transgender student and treating him differently than other boys communicates the stigmatizing message to that student and the entire school community that he should not be recognized or treated as a boy, simply because he is transgender. This undermines the social transition and exposes the student to the risk of renewed and heightened symptoms of Gender Dysphoria such as anxiety and depression. It also frequently leads transgender students to avoid using school restrooms altogether, often resulting in adverse physical health consequences such as urinary tract infections, kidney infections, and dehydration, and other consequences such as stress and difficulty focusing on classwork.
Plaintiff’s Background 20. A.W. has been a student in KUSD’s schools since kindergarten. On September 1, 2016, he will begin his senior year at Tremper High. A.W. is an excellent student: he has a high grade point average and is currently ranked in the top five percent of his class of over 400 students. All of his academic classes in his junior year were either Advanced Placement or Honors level classes. He is also very involved in many school activities, including the school’s Golden Strings orchestra, theater, tennis team, National Honor Society, and Astronomical Society. After graduation, he hopes to attend the University of Wisconsin-Madison and study biomedical engineering. A.W. also works part-time as an accounting assistant in a medical office.
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21. A.W. is a boy. He is also transgender. He was designated “female” on his birth certificate and lived as a girl until middle school, when he recognized that he is, in fact, a boy, and he began to experience profound discomfort with being assumed to be a girl by others.
22. At the end of eighth grade, in the spring of 2013, A.W. told his parents that he is transgender and a boy. Shortly thereafter, he told his older brothers.
23. During the 2013-2014 school year, A.W.’s freshman year of high school at Tremper, A.W. began confiding to a few close friends that he is a boy. He slowly began transitioning more publicly to live in accordance with his male identity: he cut his hair short, began wearing more traditionally masculine clothing, and began to go by a typically masculine name and masculine pronouns.
24. At the beginning of his sophomore year, in the fall of 2014, A.W. told all of his teachers and peers that he is a boy, requesting that he be referred to using male pronouns and his new name. On Christmas, 2014, A.W. told his extended family, including grandparents, aunts, uncles, and cousins, that he is a boy.
25. A.W. has undertaken his gender transition under the guidance and care of therapists and medical doctors. He was diagnosed with Gender Dysphoria by his pediatrician. Around the time of his public transition, A.W. began seeing a gender specialist therapist to support him in his transition. He is currently under the care of clinical psychologist, who is also a gender specialist. In April 2016, he began consulting with an endocrinologist at Children’s Hospital of Wisconsin to discuss hormonal therapy, which he intends to begin in the near future.
26. Since A.W.’s transition at school, he has been widely known and accepted as a boy by the school community. At a Golden Strings orchestra performance at a hotel on January 17, 2015, A.W. wore a tuxedo, just like all the other boys, with the support of his orchestra
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teacher, Helen Breitenbach-Cooper. Students and teachers who did not know A.W. prior to his transition did not and would not have recognized him as different from any other boy until the discriminatory events described in this complaint took place. KUSD’s Refusal to Permit Plaintiff Access to Restrooms Consistent with His Gender Identity
27. In the spring of 2015, during A.W.’s sophomore year, A.W. and his mother had several meetings with A.W.’s guidance counselor, Debra Tronvig, during which they requested that A.W. be permitted to use the boys’ restrooms at school. The counselor spoke to the school’s principal, Richard Aiello, and one of its assistant principals, Brian Geiger, and she advocated that A.W. be permitted to use the boys’ restrooms. However, at a meeting in March 2015, she reported back to A.W. and his mother that the school administrators had decided that A.W. would only be permitted to use the girls’ restrooms or the single-user, gender-neutral restroom in the school office. Tronvig and the school administrators did not suggest or indicate any circumstance under which A.W. might be permitted to use the boys’ restrooms in the future.
28. After that meeting, A.W. felt overwhelmed, helpless, hopeless, and alone. Both of the restroom options offered by Defendants were discriminatory, burdensome, or unworkable. A.W. was deeply distressed by the prospect of using the girls’ restrooms, as it would hinder and be at odds with his public social transition at school, undermine his male identity, and convey to others that he should be viewed and treated as a girl. He was also deeply distressed by the prospect of using the office restroom, which is located in the rear of the office, behind the office secretaries’ work stations—far out of the way from most of his classes—and is only used by office staff and visitors. It is A.W.’s understanding that no other students are allowed to use the office restroom. A.W. feared the questions he would face from students and staff about why he was using that particular restroom; the inconvenience of traveling long distances from (and
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missing time in) his classes to use that restroom; and the fact that he would be segregated from his classmates and further stigmatized for being “different.”
29. At the same time, A.W. was fearful of the potential disciplinary consequences if he failed to comply with the administrators’ directives not to use the boys’ restroom. He worried that such a disciplinary record could potentially interfere with his ability to get into college, as he had no prior record of discipline. As a result of that fear and anxiety, seeing no plausible options, A.W. largely avoided using any restrooms at school for the rest of that school year, and, when absolutely necessary, he only used a single-user girls’ restroom near his theater classroom.
30. In order to avoid using restrooms at school, A.W. severely restricted his liquid intake. This was particularly dangerous because A.W. suffers from vasovagal syncope, a medical condition that results in fainting upon certain physical or emotional triggers. The triggers cause a person’s heart rate and blood pressure to drop suddenly, reducing blood flow to the brain and resulting in a loss of consciousness. Because dehydration and stress trigger his fainting episodes, A.W.’s primary care doctor requires him to drink 6-7 bottles of water and a bottle of Gatorade daily.
31. In addition to vasovagal syncope, A.W. also suffers from migraines triggered by stress. During his sophomore year, while avoiding using restrooms, A.W. experienced greatly heightened symptoms of both vasovagal syncope and stress-related migraines. He also experienced increased symptoms associated with Gender Dysphoria, including depression, anxiety, and suicidal thoughts.
32. A.W. also worried that the emotional and physical toll caused by the school’s treatment of him would lead to medical or psychological harm that would delay or make it
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unsafe for him to begin hormone treatment as part of his transition. This anxiety further increased his symptoms of Gender Dysphoria.
33. In July 2015, A.W. took a trip to Europe with his school orchestra group, Golden Strings. In response to A.W.’s request to room with other boys, his orchestra teacher, Breitenbach-Cooper, checked with school administrators and then informed him that he would not be permitted to do so. A.W. felt hurt and embarrassed when he learned of the school’s decision. Once again, he understood the school’s decision to be based on a perception that he is not really a boy, and he felt degraded and humiliated by the administrators’ continued failure to recognize and respect his gender identity.
34. As a result of the school’s decision, A.W. was forced to share a room with a girl. During the trip, the students were frequently grouped by gender while traveling between destinations, and A.W. was consistently grouped with girls.
35. In July 2015, while on the trip to Europe, feeling less scrutinized, A.W. began to use male-designated bathrooms. During that trip, A.W. saw a news story about a lawsuit against the Gloucester County School District in Virginia by another transgender student who was denied access to boys’ restrooms at his high school. That story reported that the U.S. Department of Justice had concluded that transgender students have the right to use restrooms in accordance with their gender identity under Title IX and had filed a brief in the Virginia case, G.G. v. Gloucester County School Board, asserting that the school district’s policy violated transgender students’ rights under Title IX. A.W. was elated to learn that he did, in fact, have the legally protected right to use the restroom consistent with his gender. For the rest of the trip, A.W. exclusively used male-designated bathrooms, and he continued to do so upon returning to the United States.
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36. When he returned to school for his junior year, in September 2015, A.W. continued exclusively using boys’ restrooms, including at Tremper. He did so for the first seven months of the school year without any incident. No other students ever made an issue of A.W. using the boys’ bathroom. A.W. did not discuss this decision with administrators or teachers, because he understood it to be his legal right.
37. In late February 2016, after observing A.W. using a boys’ bathroom, a Tremper teacher advised two assistant principals, Geiger and Wendy LaLonde, of that fact. Geiger then informed the other administrators of A.W.’s restroom use and asked them what the school’s policy was.
38. Aiello, LaLonde, Geiger, and the third assistant principal, Holly Graf, agreed that, although neither KUSD nor Tremper had any existing written policy on students’ restroom usage, the school’s policy should be that transgender students, including A.W., would not be permitted to use school restrooms corresponding to their gender identity. Consistent with the school’s previous decision in spring 2015, they decided that A.W. would not be permitted to use the boys’ restroom and, instead, would only be permitted to use the girls’ restrooms or the singleuser restroom in the school office.
39. Following that decision, Graf emailed A.W.’s guidance counselor, Tronvig, and requested that Tronvig relay the school’s restroom policy to A.W. and his mother. Tronvig responded by email that she did not know what that policy was. Graf and Tronvig then met in person and Graf explained to Tronvig that A.W. would not be permitted to use the boys’ restrooms.
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40. In late February 2016, Tronvig called M.W. to inform her of the administration’s decision that A.W. would only be permitted to use the girls’ restrooms or the single-user restroom in the school’s main office.
41. When A.W. learned about the school’s decision, in early March 2016, he was distressed. He felt humiliated and deeply uncomfortable by the idea of using a girls’ restroom, even more so than the previous year—because he is not a girl, he had not used female-designated restrooms at school or elsewhere for a long time, and because using the girls’ restrooms as a boy risked subjecting him to ridicule, scrutiny, stigma, and harassment by other students and school staff. For the reasons alleged above, he also felt deeply uncomfortable with using the single-user main office restroom. He believed that either alternative would imply his status as a transgender boy required him to be segregated from other students, despite the fact that he had used the boys’ restrooms regularly and otherwise been treated as a boy by nearly everyone in the school community for many months.
42. A.W. was also afraid of what disciplinary consequences he might face if he failed to comply with the school’s policy. Faced with two unacceptable options proposed by the school administrators, A.W. continued to use the boys’ restrooms, as he had been doing already. That approach was the only way A.W. felt he could mitigate the physical harm that he would suffer if he refrained from all restroom use during the school day and during his after-school extracurricular activities. Because of his active involvement in after-school activities, a typical school day for A.W. lasts from 7 a.m. to 4 or 5 p.m., i.e., 9 or 10 hours. Some activities require him to be on Tremper’s campus until as late as 10 p.m., a 15-hour day. These long days at school make avoiding restrooms altogether impossible.
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43. A.W.’s decision to use the boys’ restroom consistent with his legal right, though in defiance of school policy, nevertheless exacted an emotional toll. A.W. became more depressed and anxious, grew distracted from his school work, and began to have trouble sleeping.
44. On or about March 10, 2016, A.W. and his mother met with Graf and Tronvig. During that meeting, Graf referred to A.W. exclusively by his birth name. In that meeting, Graf told M.W. that the reason A.W. could not use the boys’ restrooms was because he could only use restrooms consistent with his gender as listed in the school’s official records. Graf said that the only way the school could change A.W.’s gender in its records would be if the school received legal or medical documentation confirming his transition to male.
45. M.W. explained that, to her knowledge, A.W. was too young for transition-related surgery. Graf repeated that the school would need some kind of medical documentation, but declined to indicate what type of medical “documentation” would be sufficient to demonstrate that A.W.’s gender marker should be changed on his school records and that he could use boys’ restrooms.
46. In response, M.W. contacted A.W.’s pediatrician. The pediatrician faxed a letter to the school on or about March 11, 2016, confirming that A.W. is a transgender boy and recommending that A.W. be allowed to use male-designated facilities at school. At M.W.’s request, the pediatrician subsequently sent the school a second letter, reiterating her recommendation about A.W.’s restroom usage.
47. Despite the letters from A.W.’s doctor, Aiello emailed M.W. that the school would continue to deny boys’ restroom access to A.W. because he had not completed a medical transition.
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48. A.W. continued to use the boys’ restrooms when needed, but he mainly attempted to avoid using restrooms altogether by not drinking or eating while at school, in order to avoid the scrutiny, fear, and humiliation he faced when he had to use a restroom at school. His anxiety and depression increased further. He also experienced increased physical symptoms relating to his vasovagal syncope, including dizziness, nearly fainting, and migraines. A.W. returned to see his pediatrician in late March 2016 to have his symptoms evaluated. The pediatrician again instructed him to eat and drink regularly to avoid those symptoms. Nonetheless, A.W. was unable to comply with those instructions, out of fear of using the restrooms at school. Concerned about his physical health, his mother would regularly hand him a bottle of water and tell him to drink it to avoid dehydration, and he would refuse, saying that he did not want to have to use the restroom.
49. On or about March 17, 2016, Geiger observed A.W. as he entered a boys’ restroom, and reported that fact to Graf. Minutes later, Graf insisted that A.W. leave his acting class and come to her office, and met with him alone for half an hour, lecturing him about his use of the boys’ restrooms.
50. During that same meeting, Graf asked A.W. why he was not using the girls’ restroom or single-user restroom as directed. He informed her that the school’s policy violated his rights as a transgender student under Title IX. When A.W. made clear he could not use girls’ restrooms because he is not a girl, she again asked him to compromise and use the single-user restroom in the main office. He again refused because of the humiliation, stigma, and lost class time that he would face using that bathroom. Graf then reiterated her instruction that A.W. cease his use of boys’ restrooms.
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51. During that March 17 meeting—as well as at virtually all other times—Graf consistently referred to A.W. using his traditionally female birth name and female pronouns, despite A.W.’s request that she use his new name and male pronouns. In that meeting, when A.W. became upset by Graf’s restroom directive and refusal to respect his male gender, Graf said, “S------, calm down,” using his birth name. A.W., angry and embarrassed, said, “No, I’m leaving,” and left the office.
52. During that meeting, Graf directly threatened that A.W. would be subject to disciplinary action if he continued to use the boys’ restrooms. Specifically, she indicated A.W. would have to “go down to 109 or 203”—referring to Room 109, the in-school suspension room, and Room 203, the school’s disciplinary office.
53. Following the meeting with Graf, A.W. began to cry in the hallway. He had difficulty concentrating in his classes for the remainder of the day, holding back tears. He skipped work that afternoon and did not do any homework. Instead, he just went home after school and lay in bed feeling terrible.
54. When he absolutely needed to use the restroom, A.W. continued to use the boys’ restrooms exclusively through June 9, 2016, the final day of the school year. As a result, Graf continued to call A.W., his mother, or both into her office for periodic meetings. At those meetings, Graf would inquire about A.W.’s restroom use, and, when told he was still using the boys’ restrooms, would repeat the school’s policy that he must use the girls’ restroom or a single-user restroom. During these meetings, Graf continued to refer to A.W. by his birth name and female pronouns.
55. A.W. grew increasingly embarrassed by Graf’s repeated inquiries about his restroom use, which he felt to be an invasion of his privacy. Since each meeting with
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administrators occurred during class time, A.W. was also concerned about the effect of these repeated meetings on his academic performance and feared that he would face scrutiny from other students and teachers about why he was being removed from class so frequently. A.W., who continued to have no disciplinary record at the school, also became more worried about the increasingly real prospect of disciplinary consequences that might affect his ability to participate in extracurricular activities and negatively impact his college application process in the upcoming school year.
56. In April 2016, M.W. learned that school administrators had sent an email to all of the school’s security guards, instructing them to notify administrators if they spotted any students who appear to be going into the “wrong” restroom. Individual security guards later told M.W. that they understood the directive to be targeted at A.W.
57. A.W. felt very uncomfortable and distressed knowing that security guards and administrators were actively monitoring his restroom use.
58. On April 5, 2016, M.W. was pulled out of her Tremper classroom and summoned to a meeting with two KUSD district-level administrators: Dr. Bethany Ormseth, KUSD’s Chief of School Leadership, and Susan Valeri, KUSD’s Chief of Special Education and Student Support.
59. In that meeting, M.W. asked Ormseth and Valeri whether KUSD had adopted any policy concerning transgender students and restroom use. They provided no answer to M.W.’s question, other than to say that a policy was in the process of being created by a committee of the school board. M.W. responded, “You don’t need a policy—it’s a federal law.” Later in the school year, M.W. learned that Rebecca Stevens, a KUSD school board member, had
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contradicted Ormseth and Valeri’s account, stating to another board member that no committee had yet been formed and no policy was being written.
60. In fact, despite repeated requests by M.W. to see the written policy about transgender students’ restroom use during the course of the 2015-2016 school year, no Tremper or KUSD official has ever provided such a policy. M.W. reasonably believes no such policy exists. Rather, the Tremper administration developed and enforced a school “policy” in direct and specific response to those administrators’ discomfort with the restroom usage of one student: A.W.
61. The next day, on April 6, 2016, A.W. and M.W. attended a meeting with Aiello, Graf, and Valeri. At that meeting, the administrators offered A.W. a further “accommodation” regarding his restroom use: they informed him that he would also be allowed to use two singleuser restrooms located on the far opposite sides of campus. Those restrooms had previously been available for any student’s use, but new locks had been installed and A.W. alone was given the key to open them. The stigma of being assigned personal, segregated restrooms—to which he alone of all the 1,695 students in the building had a key—caused A.W. additional significant emotional distress. In addition, neither of these single-occupancy restrooms was convenient to A.W.’s classes and would have required him to miss more class time than his peers if he used those restrooms during class.
62. At the April 6 meeting, A.W. asked Valeri for KUSD’s rationale for prohibiting his use of the boys’ restrooms. Valeri replied with a statement to the effect of, “Well, we’ve never had a student who identifies as male but was born female.”
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63. A.W. replied by asserting that Title IX prohibits discrimination based on sex, which protects transgender students and requires schools to permit them to use restrooms consistent with the student’s gender identity.
64. Valeri denied that Title IX protects transgender students’ access to bathrooms consistent with their gender identity.
65. When A.W. asked Valeri to explain her understanding of Title IX, she refused to do so, stating words to the effect of, “I don’t think I’m going to give you any reasons.”
66. In order to avoid disciplinary sanctions from Tremper administrators for using boys’ restrooms on the one hand, and the scrutiny and embarrassment that would result from using individually assigned restroom facilities on the other, A.W. continued to avoid using school restrooms as much as possible. He has never used the designated locked single-user restrooms, as doing so would call unwanted attention to himself by using a key to enter a restroom to which no other student has access, and because of his desire not to spend unnecessary time out of class traveling to those inconveniently located restrooms.
67. As a result of the stress caused by school’s discriminatory actions, and his attempts to avoid using any restrooms at school, A.W.’s migraines and episodes of fainting and dizziness continued to worsen. His depression, anxiety, and dysphoria also deepened. He became severely depressed and lethargic, and no longer wanted to get out of bed in the morning.
68. Due to the serious consequences the school’s actions were having on A.W.’s physical and psychological well-being, he considered withdrawing from Tremper and transferring to an online school to finish high school. He ultimately decided not to withdraw at that time, due to his involvement in activities like the school orchestra that would not be
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available if he were enrolled in an online school instead, and because changing schools would put him further behind in his classwork.
School’s Refusal to Permit A.W. to Be Considered for Junior Prom King 69. Tremper High’s junior prom was scheduled for May 7, 2016. In late March, the faculty advisor for the junior prom, Lorena Danielson, submitted the names of candidates for the prom court to Aiello. Candidates for prom king and queen are required to earn volunteer hours in order to participate and whoever earns the most hours is selected for prom court. Based on his community service hours, the junior prom advisor designated A.W. as a candidate for prom king and then met with Aiello to confirm the list. 70. After meeting with the junior prom advisor, Aiello called M.W. in for a meeting with him and Graf on or about March 22, 2016, during which he told her that A.W. could be on the prom court, but could only be a candidate for prom queen, not prom king. When A.W. learned about this, he was devastated. He was humiliated at the prospect of running for prom queen, when all his classmates knew him to be a boy. He felt deeply disrespected and angry that the administrators failed to recognize how hurtful and unfair this additional form of discrimination was. 71. On April 4, 2016, A.W. and his friends presented a MoveOn.org petition to Tremper administrators demanding that A.W. be allowed to run for prom king and to use the boys’ restrooms at school, which was signed by many members of the Tremper community and thousands of others around the country. When administrators failed to respond, on April 5, 2016, 70 students participated in a sit-in at Tremper’s main office to show their support for A.W. The students held signs expressing the view that transgender students should be treated equally,
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and supporting A.W.’s right to be allowed to run for prom king and to use the boys’ restrooms at school.
72. Following the sit-in and media attention about KUSD’s treatment of A.W., in the April 6, 2016 meeting referenced above, Aiello, Graf, and Valeri informed A.W. and M.W. that A.W. would be permitted to run for prom king.
73. Although A.W. was pleased to have the opportunity to run for prom king and heartened by the outpouring of support from his classmates, he continued to feel deeply distressed as a result of the school administrators’ initial decision that he could only run for prom queen and their continued pattern of refusing to recognize or respect his male gender identity.
Name and Gender in School Records 74. KUSD has not changed A.W.’s name on his official records and other documents, including classroom attendance rosters used by his teachers. Although most of A.W.’s teachers refer to him by his male name, substitute teachers have frequently referred to him by his birth name in front of his classmates because that is the name that appears on the attendance rosters. In response, and in order to avoid embarrassment or discomfort from his classmates, A.W. has been compelled to approach all of his teachers at the beginning of each term to advise them of his preferred name and pronouns and request that they do not refer to him by his birth name. He similarly must approach substitute teachers before class every time a teacher is absent. Although some teachers note his correct name on the class roster, others have not documented that name on the roster, and occasionally substitute teachers still refer to him by his birth name in class. Being called a traditionally female name in front of all his classmates reveals that he is transgender to all of his peers and makes A.W. feel embarrassed and distressed. The practice has
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resulted in A.W. experiencing increased symptoms of Gender Dysphoria, including anxiety and depression.
75. In the meetings with administrators on March 6 and March 22, M.W. requested that the school change A.W.’s name and gender in its official records to avoid those problems. In both meetings, Graf told M.W. that in order to change A.W.’s name or gender in the school’s official records, the school would need to see legal or medical documentation. The medical documentation A.W.’s pediatrician sent was deemed insufficient, although Graf and Aiello refused to specify what the contents of acceptable documentation would be, despite repeated requests for clarification. They also failed to specify what type of “legal documentation” would be necessary to update the school records.
76. Even if KUSD is unable to change A.W.’s name or gender in its official school records because A.W. has not yet obtained a legal name change, KUSD can and should take steps to avoid intentional or inadvertent disclosure of A.W.’s birth name or sex assigned at birth to KUSD employees or students, including by modifying informal or public-facing documents, such as attendance rosters, to reflect A.W.’s male name and male gender.
Other Harassing and Stigmatizing Treatment Faced by A.W. at School 77. After news broke about the petition for A.W. to run for prom king and use boys’ restrooms at school, some parents and other Kenosha residents began to speak out in opposition to A.W.’s right to use boys’ restrooms. On May 10, 2016, shortly after the junior prom, at a meeting of the Board, several community members spoke in opposition to allowing transgender students to use restrooms in accordance with their gender identity. One parent told the Board that he was opposed to permitting transgender students to use gender-appropriate restrooms
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because such a policy would permit sexual predators to enter women’s restrooms and put his daughters at risk.
78. That person’s wife, who volunteers as a pianist with the school orchestra, has created and maintains a public Facebook group called “KUSD Parents for Privacy,” which contains numerous posts critical of transgender students’ rights. Several posts on that page have mentioned A.W. and his mother by name, accompanied by their photographs. One post, on May 14, 2016, linked to an article about A.W., contains a photograph of him and his mother, and describes him as a “pawn.”
79. At an orchestra rehearsal at the school on May 11, 2016, the day following the Board meeting at which her husband spoke, this woman approached A.W., put her hands on his shoulders, and said words to the effect of, “A----, honey, this isn’t about you, this is bigger than you. I’m praying for you.” A.W. was extremely uncomfortable and embarrassed, and did not respond. M.W. and A.W. later brought this incident to Aiello’s attention. Aiello requested that Breitenbach-Cooper, the orchestra teacher, call the volunteer to advise her not to talk to students like that, but took no further action. Nothing changed as a result. She is still a regular volunteer with the school orchestra and has continued to attend every rehearsal. Her constant presence substantially diminishes A.W.’s enjoyment of an extracurricular activity that has formed an important part of his educational experience at Tremper.
Green Wristbands to Mark Transgender Students 80. In May 2016, A.W.’s guidance counselor, Tronvig, showed M.W. a bright green wristband that the school intended to use to mark students who are transgender. 81. Branding transgender students in this way would single them out for additional scrutiny, stigma, and potentially harassment or violence, and violate their privacy by revealing their transgender status to others.
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82. Upon learning about the school’s proposed green wristband practice, A.W. felt sickened and afraid. He was aware of the prevalence of violent attacks against transgender people nationwide, and grew very afraid that the school would attempt to force him to wear the wristband on penalty of discipline. If he did wear the wristband, he knew that other students would likely ask him repeatedly why he was wearing it, and he would have to explain over and over that he is transgender. He expected that some students would stare, and others would outright ridicule him. He felt like his safety would be even more threatened if he had to wear this visible badge of his transgender status.
83. To Plaintiff’s knowledge, the green wristband practice adopted at the end of the school year is still in place, such that guidance counselors will be expected to provide these wristbands to transgender students in the upcoming school year.
Overnight Accommodations at Summer Orchestra Camp 84. A.W. participated in a five-day, school-sponsored summer orchestra camp from June 12-16, 2016. The camp was held on the campus of the University of Wisconsin-Oshkosh, and students stayed in dormitories on campus. The dorms used for the camp were suites with two to four bedrooms and a common living room, kitchenette, and two single-occupancy restrooms. Each suite had either four separate, single-occupancy bedrooms, or two doubleoccupancy rooms. During the evenings, school chaperones placed tape across each of the bedroom doorways to prevent students from leaving the bedrooms at night. The suites were shared by students of the same sex. 85. In advance of the camp, the school allowed students to sign up for dorm rooms with their friends. A.W. had signed up to stay in a boys’ suite with one of his best friends, a male student.
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86. Breitenbach-Cooper, the orchestra teacher, told Aiello about A.W.’s request to stay in the same suite as his friend and other male students. Aiello replied that A.W. could not do so because, under Tremper’s policy, he could not stay with other boys. Aiello told Breitenbach-Cooper that A.W. would have to stay in a suite with girls or alone in a suite, segregated from all of his peers.
87. In order to participate in the orchestra camp, A.W. reluctantly agreed to stay in double-bedroom suite all alone, with no other students sharing the suite. He rejected the “option” to stay in a suite with girls because he is a boy and he felt uncomfortable staying with girls.
88. This arrangement excluded A.W. from socializing with other students during the entire five-day camp. Students were prohibited from entering other suites, and could only socialize within their own suite or in common areas of the building. Since almost all the other students remained in their suites to socialize in the evenings, A.W. stayed in his room alone each evening while the other students enjoyed time to socialize with their friends. He felt lonely and depressed, and disappointed that he was not able to have the same good memories of his final year at camp as all the other students.
89. The school’s decision to segregate A.W. from the other boys also left him feeling hurt and embarrassed. He understood the school’s decision to be based on a perception that he might engage in sexual activity with another boy, and he felt degraded and humiliated by the idea that administrators were thinking about him in those terms.
District’s Failure to Change its Discriminatory Policies after Notice of Legal Obligations 90. A.W. and M.W. have repeatedly advised KUSD officials that their actions violate
A.W.’s right to attend school free from sex discrimination, as required by Title IX and the Equal
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Protection Clause. Despite being put on notice of the violations of A.W.’s statutory and constitutional rights, KUSD has refused to change its policies to date.
91. On April 19, 2016, through his attorneys, A.W. sent a letter to Superintendent Savaglio-Jarvis demanding that KUSD permit him to use boys’ restrooms at school.
92. By letter of April 26, 2016, KUSD’s attorneys responded, acknowledging their awareness of U.S. Department of Education guidance documents interpreting Title IX to protect students from discrimination based on their gender identity—as well as the Fourth Circuit’s April 19, 2016 opinion in G.G. v. Gloucester County School Board, a Title IX case brought by a transgender high school student who was denied access to boys’ restrooms at school, in which that appeals court deferred to the Department of Education’s interpretation of Title IX and held that the plaintiff student was entitled to restroom access consistent with his gender identity. The letter nevertheless maintained that KUSD is not bound by these authorities and would not change its position on A.W.’s restroom use.
93. On May 12, 2016, A.W. filed an administrative complaint with the U.S. Department of Education Office for Civil Rights (“OCR”), alleging that KUSD’s actions violated A.W.’s rights under Title IX. Shortly before filing this lawsuit, Plaintiff’s attorneys contacted OCR and requested to withdraw that complaint, without prejudice.
94. On May 13, 2016, the U.S. Department of Education and U.S. Department of Justice issued a joint guidance letter to all public schools, colleges, and universities in the country receiving Federal financial assistance, reiterating the federal government’s previously stated position that, pursuant to Title IX, all public schools are obligated to treat transgender students consistent with their gender identities in all respects, including regarding name and pronoun usage, restroom access, and overnight accommodations.
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95. Following the issuance of the federal guidance on May 13, 2016, KUSD officials publicly acknowledged the guidance but stated that they did not believe they were required to comply with it. KUSD issued a statement declaring, “[t]he Department of Education’s . . . letter is not law; it is the Department’s interpretation of the law,” suggesting that it would not change its policy absent a court order.
96. To date, the Board has not articulated or adopted any formal policy regarding transgender students in KUSD’s schools.
97. Based on the statements and actions of KUSD officials, A.W. feels deep anxiety and dread about experiencing continued discrimination during his senior year and the effect that it will have on him during the college application process.
INJURY TO PLAINTIFF 98. Through their actions described above, Defendants have injured and are continuing to injure Plaintiff. 99. Defendants have denied A.W. full and equal access to KUSD’s education programs and activities by denying him the full and equal access to student restrooms and overnight accommodations during school-sponsored trips offered to other male students. 100. A.W. has experienced and continues to experience the harmful effects of being segregated from, and treated differently than, his male classmates at school and during schoolsponsored events, including lowered self-esteem, embarrassment, social isolation, and stigma, as well as heightened symptoms of Gender Dysphoria, including depression and anxiety. 101. When school administrators and staff intentionally used his birth name or female pronouns (or allowed others to do so), instructed him not to use the boys’ restrooms, instructed security personnel to surveil his movements, and otherwise undermined his male identity and
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singled him out as different from all other boys, he has felt deeply hurt, disrespected, and humiliated.
102. Defendants’ discriminatory actions, and the efforts A.W. has made to comply with the directive not to use the boys’ restroom—limiting food and drink while at school—have led to a host of physical symptoms, including dehydration, dizziness, fainting, and migraines. All of those symptoms virtually disappeared once A.W. returned home from the orchestra camp and summer break began, and A.W. was no longer facing daily scrutiny and anxiety and could eat and drink at a healthy level.
103. As a direct and continuing result of Defendants’ discriminatory actions, A.W. has suffered increased and continuing emotional distress over the last six months. He has experienced escalating symptoms of depression and anxiety, and his self-esteem has suffered, as a result of the discrimination he has experienced at school. Although he cried very little in the past, he frequently cries and fights back tears.
104. As a result of the depression and anxiety Defendants’ actions caused, A.W. has also had difficulty eating and sleeping properly, and difficulty concentrating in classes and on his homework.
105. As a result of Defendants’ actions, and the feelings of fear and scrutiny he has grown used to, A.W. now feels unsafe being outside of the house, afraid that he will be targeted for an assault by someone who knows he is transgender. He will typically only go out in groups of friends, and tries to avoid ever going out with only one other friend or alone.
106. A.W. has also missed significant class time due to being compelled by KUSD officials to participate in repeated, lengthy meetings during class time to discuss his use of
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restrooms, his name and gender in school records, and the school’s determination that he would be prohibited from running for prom king.
107. All of the above discriminatory treatment has undermined the efficacy of the social transition component of his gender transition and heightened his symptoms of Gender Dysphoria.
108. If Defendants refuse to grant A.W. access to boys’ restrooms by the time his senior year begins on September 1, 2016, he will likely experience the same social stigma, emotional distress, academic harm, and detrimental impediments to his gender transition resulting from Defendants’ conduct that he experienced during his junior year.
CAUSES OF ACTION First Cause of Action Violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. 109. Plaintiff realleges and incorporates the facts and allegations contained in paragraphs 1 through 107 as fully set forth herein. 110. Under Title IX and its implementing regulations, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see also 34 C.F.R. § 106.31 (Department of Education Title IX regulations); 7 C.F.R. § 15a.31 (Department of Agriculture Title IX regulations); 45 C.F.R. § 86.31 (Department of Health and Human Services Title IX regulations). Title IX’s prohibitions on sex discrimination extend to “any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient” of federal funding. 34 C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31.
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111. Title IX’s prohibition on discrimination “on the basis of sex” encompasses discrimination based on an individual’s gender identity, transgender status, and gender expression, including nonconformity to sex- or gender-based stereotypes.
112. Conduct specifically prohibited under Title IX includes, inter alia, treating one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; providing different aid, benefits, or services in a different manner; denying any person any such aid, benefit, or service; or otherwise subjecting any person to separate or different rules of behavior, sanctions, or other treatment. 34 C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31.
113. As a Federal funding recipient, Defendant Kenosha Unified School District No. 1 Board of Education, including the academic, extracurricular, and other educational opportunities provided by the Kenosha Unified School District and Tremper High School, is subject to Title IX’s prohibitions on sex- and gender-based discrimination against any student.
114. As set forth in paragraphs 28 to 98 above, Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from accessing male-designated restrooms at school, and requiring that he use female-designated restrooms or single-occupancy restrooms, have discriminated and continue to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, and thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex, in violation of Title IX.
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115. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on school-sponsored trips, and requiring him to stay in female-designated overnight accommodations or segregated accommodations on those trips, has discriminated and continues to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, and thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex, in violation of Title IX.
116. Defendants have further violated Title IX by failing to recognize fully and respect Plaintiff, a transgender boy, as a male student, including through administrators’ repeated and intentional use of Plaintiff’s traditionally female birth name and female pronouns to address him and refer to him to others; the failure to take necessary and appropriate action to update or modify A.W.’s official and/or informal student records, including classroom attendance rosters, to prevent teachers, substitute teachers, and other school staff from referring to him by his female birth name and female pronouns in the presence of other students; Tremper administrators’ initial refusal to permit A.W. to run for junior prom king and directive that he run for prom queen instead, withdrawn only after a student protest and media attention; and Tremper administrators’ instruction to school guidance counselors to provide green wristbands to transgender students. Through these actions, individually and collectively, Defendants have and continue to exclude Plaintiff from participation in, deny him the benefits of, and subject him to discrimination in KUSD’s education programs and activities, on the basis of sex, in violation of Title IX.
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117. Defendants, through instructing Tremper staff to report the restroom use of any student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their rights under Title IX to be free from discrimination on the basis of sex, including on the basis of gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in further violation of Title IX.
118. Plaintiff has been, and continues to be, injured by Defendants’ discriminatory conduct and has suffered damages as a result.
Second Cause of Action Violation of 42 U.S.C. § 1983 Based on Deprivation of Plaintiff’s Rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 119. Plaintiff realleges and incorporate the facts and allegations contained in paragraphs 1 through 107 as fully set forth herein. 120. Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, discrimination based on sex, including gender, gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, as well as discrimination based on transgender status alone, is presumptively unconstitutional and is therefore subject to heightened scrutiny. 121. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from accessing male-designated restrooms at school, and requiring that he use female-designated restrooms or single-occupancy restrooms, have discriminated and continue to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the
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fact that he is transgender, and his nonconformity to male stereotypes, thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex and transgender status, in violation of the Equal Protection Clause.
122. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on school-sponsored trips, and requiring him to stay in female-designated overnight accommodations or segregated accommodations on those trips, has discriminated and continues to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex and transgender status, in violation of the Equal Protection Clause.
123. Defendants have further violated Plaintiff’s rights under the Equal Protection Clause by failing to recognize fully and respect Plaintiff, a transgender boy, as a male student, including through administrators’ repeated and intentional use of Plaintiff’s traditionally female birth name and female pronouns to address him and refer to him to others; the failure to take necessary and appropriate action to update or modify A.W.’s official and/or informal student records, including classroom attendance rosters, to prevent teachers, substitute teachers, and other school staff from referring to him by his female birth name and female pronouns in the presence of other students; Tremper administrators’ initial refusal to permit A.W. to run for junior prom king and directive that he run for prom queen instead, withdrawn only after a student
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protest and media attention; and Tremper administrators’ instruction to school guidance counselors to provide green wristbands to any student who identified himself or herself as transgender. Through these actions, individually and collectively, Defendants have and continue to exclude Plaintiff from participation in, deny him the benefits of, and subject him to discrimination in KUSD’s education programs and activities, on the basis of sex and transgender status, in violation of the Equal Protection Clause.
124. Defendants, through instructing Tremper staff to report the restroom use of any student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their rights to be free from discrimination on the basis of sex, including on the basis of gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in further violation of the Equal Protection Clause.
125. Defendants’ discrimination against A.W. is not substantially related to any important governmental interest, nor is it rationally related to any legitimate governmental interest.
126. Defendants are liable for their violation of A.W.’s Fourteenth Amendment rights under 42 U.S.C. § 1983.
127. Plaintiff has been, and continues to be, injured by Defendants’ conduct and has suffered damages as a result.
PRAYER FOR RELIEF WHEREFORE, Plaintiff A.W., by and through his mother and next friend, M.W., requests that this Court:
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(a) enter a declaratory judgment that the actions of Defendants complained of herein are in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
(b) issue preliminary and permanent injunctions (i) directing Defendants to provide Plaintiff access to male-designated restrooms at school, and otherwise to treat him as a boy in all respects for the remainder of his time as a student in Defendants’ schools or until resolution of this lawsuit, whichever is later; (ii) restraining Defendants, their agents, employees, representatives, and successors, and any other person acting directly or indirectly with them, from adopting, implementing, or enforcing any policy or practice at the school or District level that treats transgender students differently from their similarly situated peers (i.e., treating transgender boys differently from other boys and transgender girls differently from other girls); (iii) directing Defendants to clarify that KUSD and Tremper’s existing policies prohibiting discrimination on the basis of sex apply to discrimination based on gender identity, transgender status, and nonconformity to sex- and gender-based stereotypes; (iv) ordering Defendants to provide training to all district-level and school-based administrators in the Kenosha Unified School District on their obligations under Title IX and the Equal Protection Clause regarding the nondiscriminatory treatment of transgender and gender nonconforming students; and (v) ensuring that all district-level and school-based administrators responsible for enforcing Title IX, including Defendants’ designated Title IX coordinator(s), are aware of the correct and proper application of Title IX to transgender and gender nonconforming students;
(c) order all compensatory relief necessary to cure the adverse educational effects of Defendants’ discriminatory actions on Plaintiff’s education;
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(d) award compensatory damages in an amount that would fully compensate Plaintiff for the emotional distress and other damages that have been caused by Defendants’ conduct alleged herein;
(e) award Plaintiff his reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
(f) order such other relief as this Court deems just and equitable.

Dated: July 19, 2016

Respectfully submitted,

Ilona Turner* Alison Pennington* TRANSGENDER LAW CENTER 1629 Telegraph Avenue, Suite 400 Oakland, CA 94612 Phone: (415) 865-0176 Fax: (877) 847-1278 ilona@transgenderlawcenter.org alison@transgenderlawcenter.org

/s Joseph J. Wardenski Michael Allen* Joseph J. Wardenski RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 Phone: (202) 728-1888 Fax: (202) 728-0848 mallen@relmanlaw.com jwardenski@relmanlaw.com

Robert (Rock) Theine Pledl PLEDL & COHN, S.C. 1110 N. Old World Third Street, Suite 215 Milwaukee, WI 53203 Phone: (414) 225-8999 Fax: (414) 225-8987 rtp@pledlcohn.com

* Application for admission to this Court to follow

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ASHTON WHITAKER, a minor, by his mother and next friend, MELISSA WHITAKER,

Plaintiff,

Civ. Action No. 2:16-cv-00943

v.

AMENDED COMPLAINT

KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS, in her official capacity as Superintendent of the Kenosha Unified School District No. 1,

Defendants.

INTRODUCTION 1. Plaintiff Ashton (“Ash”) Whitaker, a 16-year-old boy, is a rising senior at George Nelson Tremper High School (“Tremper”) in the Kenosha Unified School District No. 1 (“KUSD”) in Kenosha, Wisconsin. Ash is a boy. He is also transgender. Ash was assumed to be a girl when he was born, and was designated “female” on his birth certificate, but has a male gender identity and lives as a boy in all aspects of his life. Ash’s family, classmates, medical providers, and others recognize Ash as a boy, respect his male gender identity, and support his right to live and be treated consistent with that gender identity. 2. Defendants Kenosha Unified School District No. 1 Board of Education (the “Board”), Superintendent Sue Savaglio-Jarvis, and their agents, employees, and representatives, have repeatedly refused to recognize or respect Ash’s gender identity and have taken a series of discriminatory and highly stigmatizing actions against him based on his sex, gender identity, and transgender status. The actions, as described more fully herein, have included (a) denying him
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access to boys’ restrooms at school and requiring him to use girls’ restrooms or a singleoccupancy restroom; (b) directing school staff to monitor his restroom usage and to report to administrators if he was observed using a boys’ restroom; (c) intentionally and repeatedly using his birth name and female pronouns, and failing to appropriately inform substitute teachers and other staff members of his preferred name and pronouns, resulting in those staff referring to him by his birth name or with female pronouns in front of other students; (d) instructing guidance counselors to issue bright green wristbands to Ash and any other transgender students at the school, to more easily monitor and enforce these students’ restroom usage; (e) requiring him to room with girls on an orchestra trip to Europe and requiring, as a condition of his ability to participate in a recent overnight school-sponsored orchestra camp held on a college campus, that he stay either in a multi-room suite with girls, or alone in a multi-room suite with no other students, while all other boys shared multi-room suites with other boys; and (f) initially denying him the ability to run for junior prom king, despite being nominated for that recognition based on his active involvement in community service, instructing him that he could only run for prom queen, and only relenting and allowing him to run for prom king after a protest by many of those same classmates.
3. Through these actions, Defendants have discriminated against Ash on the basis of sex, including on the basis of his gender identity, transgender status, and nonconformity to sexbased stereotypes, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and on the basis of sex and transgender status in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Defendants’ actions have denied Ash full and equal access to KUSD’s education program and activities on the basis of his sex.
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4. Plaintiff, through his mother and next friend, Melissa Whitaker, brings this action against Defendants based on these unlawful and discriminatory actions.
5. Plaintiff seeks a declaratory judgment, preliminary and permanent injunctive relief, and damages resulting from Defendants’ discriminatory actions.
PARTIES 6. Plaintiff Ash Whitaker is a 16-year-old boy. He was born in 1999. He resides in Kenosha, Wisconsin and is a student at Tremper High School, a public high school in the Kenosha Unified School District No. 1. He will begin his senior year at Tremper on September 1, 2016. 7. Melissa Whitaker is Ash’s mother and brings this action as his next friend. Ms. Whitaker resides in Kenosha, Wisconsin and is employed by the Kenosha Unified School District No. 1 as a high school teacher at Tremper. 8. Defendant Kenosha Unified School District No. 1 Board of Education is a sevenmember elected body responsible for governing the Kenosha Unified School District No. 1, a public school district serving over 22,000 students in kindergarten through 12th grade who reside in the City of Kenosha, Village of Pleasant Prairie, and Town and Village of Somers. The Board derives its authority to govern KUSD directly from the Wisconsin Constitution and state statutes. The school district is a recipient of federal funds from the U.S. Department of Education, the U.S. Department of Agriculture, and the U.S. Department of Health and Human Services, and, as such, is subject to Title IX of the Education Amendments of 1972, which prohibits sex discrimination against any person in any education program or activity receiving Federal financial assistance. The Board designates responsibility for the administration of KUSD to its Superintendent of Schools, currently Dr. Sue Savaglio-Jarvis, who oversees a number of district-
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level administrators. KUSD operates 42 schools, including six high schools. One of the high schools is Tremper, a 1,695-student public high school located in Kenosha, serving students in grades 9 through 12. Tremper’s administration includes a principal and three assistant principals. The Board is vicariously liable for the acts or omissions of its employees, agents, and representatives, including those of the other Defendant Savaglio-Jarvis and other Tremper administrators, staff, and volunteers.
9. Defendant Sue Savaglio-Jarvis is the Superintendent of the Kenosha Unified School District and is sued in her official capacity. At all times relevant to the events described herein, Savaglio-Jarvis acted within the scope of her employment as an employee, agent, and representative of the Board. In such capacity, she carried out the discriminatory practices described herein (a) at the direction of, and with the consent, encouragement, knowledge, and ratification of the Board; (b) under the Board’s authority, control, and supervision; and (c) with the actual or apparent authority of the Board.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1343(a)(3), and is authorized to order declaratory relief under 28 U.S.C. §§ 2201 and 2202. 11. Venue is proper in the Eastern District of Wisconsin under 28 U.S.C. § 1391(b) because the claims arose in the District, the parties reside in the District, and all of the events giving rise to this action occurred in the District.
FACTS Gender Identity and Gender Dysphoria 12. Sex is a characteristic that is made up of multiple factors, including hormones, external physical features, internal reproductive organs, chromosomes, and gender identity.
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13. Gender identity—a person’s deeply felt understanding of their own gender—is the determining factor of a person’s sex. Gender identity is often established as early as two or three years of age, though a person’s recognition of their gender identity can emerge at any time. There is a medical consensus that efforts to change a person’s gender identity are ineffective, unethical, and harmful. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.
14. The phrase “sex assigned at birth” refers to the sex designation recorded on an infant’s birth certificate. For most people, gender identity aligns with the person’s sex assigned at birth, a determination generally based solely on the appearance of a baby’s external genitalia at birth. For transgender people, however, the gender they were assumed to be at birth does not align with their gender identity. For example, a transgender boy is a person who was assumed to be female at birth but is in fact a boy. A transgender girl is a person who was assumed to be a boy at birth but is in fact a girl.
15. Gender Dysphoria is a condition recognized by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-5”). It refers to clinically significant distress that can result when a person’s gender identity differs from the person’s assumed gender at birth. If left untreated, Gender Dysphoria may result in profound psychological distress, anxiety, depression, and even self-harm or suicidal ideation.
16. Treatment for Gender Dysphoria is usually pursuant to the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards of Care”), published by the World Professional Association for Transgender Health (“WPATH”) since 1980. WPATH is an international, multidisciplinary, professional association of medical providers, mental health providers, researchers, and others, with a mission of promoting
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evidence-based care and research for transgender health, including the treatment of Gender Dysphoria. WPATH published the seventh and most recent edition of the Standards of Care in 2011.
17. Consistent with the WPATH Standards of Care, treatment for Gender Dysphoria consists of the person “transitioning” to living and being accepted by others as the sex corresponding to the person’s gender identity. A key stage in that process is a “social transition,” in which the individual lives in accordance with his gender identity in all aspects of life. A social transition, though specific to each person, typically includes adopting a new first name, using and asking others to use pronouns reflecting the individual’s true gender, wearing clothing typically associated with that gender, and using sex-specific facilities corresponding to that gender. Failing to recognize or respect a transgender person’s gender is contrary to established medical protocols and can exacerbate an individual’s symptoms of Gender Dysphoria.
18. Medical treatments, such as hormone therapy or surgical procedures, may also be undertaken to facilitate transition and alleviate dysphoria, typically after an individual’s social transition. Under the WPATH Standards of Care, living full-time in accordance with one’s gender identity in all aspects of life for at least one year is a prerequisite for any medical interventions. Medical treatments are not necessary or appropriate in all cases.
19. A social transition requires that a transgender boy be recognized as a boy and treated the same as all other boys by parents, teachers, classmates, and others in the community. This includes being referred to exclusively with the student’s new name and male pronouns, being permitted to use boys’ restrooms and overnight accommodations on the same footing as other male students, and having the right to keep information about the student’s transgender status private. Singling out a transgender student and treating him differently than other boys
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communicates the stigmatizing message to that student and the entire school community that he should not be recognized or treated as a boy, simply because he is transgender. This undermines the social transition and exposes the student to the risk of renewed and heightened symptoms of Gender Dysphoria such as anxiety and depression. It also frequently leads transgender students to avoid using school restrooms altogether, often resulting in adverse physical health consequences such as urinary tract infections, kidney infections, and dehydration, and other consequences such as stress and difficulty focusing on classwork.
Plaintiff’s Background 20. Ash has been a student in KUSD’s schools since kindergarten. On September 1, 2016, he will begin his senior year at Tremper High. Ash is an excellent student: he has a high grade point average and is currently ranked in the top five percent of his class of over 400 students. All of his academic classes in his junior year were either Advanced Placement or Honors level classes. He is also very involved in many school activities, including the school’s Golden Strings orchestra, theater, tennis team, National Honor Society, and Astronomical Society. After graduation, he hopes to attend the University of Wisconsin-Madison and study biomedical engineering. Ash also works part-time as an accounting assistant in a medical office. 21. Ash is a boy. He is also transgender. He was designated “female” on his birth certificate and lived as a girl until middle school, when he recognized that he is, in fact, a boy, and he began to experience profound discomfort with being assumed to be a girl by others. 22. At the end of eighth grade, in the spring of 2013, Ash told his parents that he is transgender and a boy. Shortly thereafter, he told his older brothers. 23. During the 2013-2014 school year, Ash’s freshman year of high school at Tremper, Ash began confiding to a few close friends that he is a boy. He slowly began
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transitioning more publicly to live in accordance with his male identity: he cut his hair short, began wearing more traditionally masculine clothing, and began to go by a typically masculine name and masculine pronouns.
24. At the beginning of his sophomore year, in the fall of 2014, Ash told all of his teachers and peers that he is a boy, requesting that he be referred to using male pronouns and his new name. On Christmas, 2014, Ash told his extended family, including grandparents, aunts, uncles, and cousins, that he is a boy.
25. Ash has undertaken his gender transition under the guidance and care of therapists and medical doctors. He was diagnosed with Gender Dysphoria by his pediatrician. Around the time of his public transition, Ash began seeing a gender specialist therapist to support him in his transition. He is currently under the care of clinical psychologist, who is also a gender specialist. In April 2016, he began consulting with an endocrinologist at Children’s Hospital of Wisconsin to discuss hormonal therapy. Ash began receiving testosterone treatment under the care of an endocrinologist in July 2016.
26. Since Ash’s transition at school, he has been widely known and accepted as a boy by the school community. At a Golden Strings orchestra performance at a hotel on January 17, 2015, Ash wore a tuxedo, just like all the other boys, with the support of his orchestra teacher, Helen Breitenbach-Cooper. Students and teachers who did not know Ash prior to his transition did not and would not have recognized him as different from any other boy until the discriminatory events described in this complaint took place. KUSD’s Refusal to Permit Plaintiff Access to Restrooms Consistent with His Gender Identity
27. In the spring of 2015, during Ash’s sophomore year, Ash and his mother had several meetings with Ash’s guidance counselor, Debra Tronvig, during which they requested
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that Ash be permitted to use the boys’ restrooms at school. The counselor spoke to the school’s principal, Richard Aiello, and one of its assistant principals, Brian Geiger, and she advocated that Ash be permitted to use the boys’ restrooms. However, at a meeting in March 2015, she reported back to Ash and his mother that the school administrators had decided that Ash would only be permitted to use the girls’ restrooms or the single-user, gender-neutral restroom in the school office. Tronvig and the school administrators did not suggest or indicate any circumstance under which Ash might be permitted to use the boys’ restrooms in the future.
28. After that meeting, Ash felt overwhelmed, helpless, hopeless, and alone. Both of the restroom options offered by Defendants were discriminatory, burdensome, or unworkable. Ash was deeply distressed by the prospect of using the girls’ restrooms, as it would hinder and be at odds with his public social transition at school, undermine his male identity, and convey to others that he should be viewed and treated as a girl. He was also deeply distressed by the prospect of using the office restroom, which is located in the rear of the office, behind the office secretaries’ work stations—far out of the way from most of his classes—and is only used by office staff and visitors. It is Ash’s understanding that no other students are allowed to use the office restroom. Ash feared the questions he would face from students and staff about why he was using that particular restroom; the inconvenience of traveling long distances from (and missing time in) his classes to use that restroom; and the fact that he would be segregated from his classmates and further stigmatized for being “different.”
29. At the same time, Ash was fearful of the potential disciplinary consequences if he failed to comply with the administrators’ directives not to use the boys’ restroom. He worried that such a disciplinary record could potentially interfere with his ability to get into college, as he had no prior record of discipline. As a result of that fear and anxiety, seeing no plausible
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options, Ash largely avoided using any restrooms at school for the rest of that school year, and, when absolutely necessary, he only used a single-user girls’ restroom near his theater classroom.
30. In order to avoid using restrooms at school, Ash severely restricted his liquid intake. This was particularly dangerous because Ash suffers from vasovagal syncope, a medical condition that results in fainting upon certain physical or emotional triggers. The triggers cause a person’s heart rate and blood pressure to drop suddenly, reducing blood flow to the brain and resulting in a loss of consciousness. Because dehydration and stress trigger his fainting episodes, Ash’s primary care doctor requires him to drink 6-7 bottles of water and a bottle of Gatorade daily.
31. In addition to vasovagal syncope, Ash also suffers from migraines triggered by stress. During his sophomore year, while avoiding using restrooms, Ash experienced greatly heightened symptoms of both vasovagal syncope and stress-related migraines. He also experienced increased symptoms associated with Gender Dysphoria, including depression, anxiety, and suicidal thoughts.
32. Ash also worried that the emotional and physical toll caused by the school’s treatment of him would lead to medical or psychological harm that would delay or make it unsafe for him to begin hormone treatment as part of his transition. This anxiety further increased his symptoms of Gender Dysphoria.
33. In July 2015, Ash took a trip to Europe with his school orchestra group, Golden Strings. In response to Ash’s request to room with other boys, his orchestra teacher, Breitenbach-Cooper, checked with school administrators and then informed him that he would not be permitted to do so. Ash felt hurt and embarrassed when he learned of the school’s decision. Once again, he understood the school’s decision to be based on a perception that he is
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not really a boy, and he felt degraded and humiliated by the administrators’ continued failure to recognize and respect his gender identity.
34. As a result of the school’s decision, Ash was forced to share a room with a girl. During the trip, the students were frequently grouped by gender while traveling between destinations, and Ash was consistently grouped with girls.
35. In July 2015, while on the trip to Europe, feeling less scrutinized, Ash began to use male-designated bathrooms. During that trip, Ash saw a news story about a lawsuit against the Gloucester County School District in Virginia by another transgender student who was denied access to boys’ restrooms at his high school. That story reported that the U.S. Department of Justice had concluded that transgender students have the right to use restrooms in accordance with their gender identity under Title IX and had filed a brief in the Virginia case, G.G. v. Gloucester County School Board, asserting that the school district’s policy violated transgender students’ rights under Title IX. Ash was elated to learn that he did, in fact, have the legally protected right to use the restroom consistent with his gender. For the rest of the trip, Ash exclusively used male-designated bathrooms, and he continued to do so upon returning to the United States.
36. When he returned to school for his junior year, in September 2015, Ash continued exclusively using boys’ restrooms, including at Tremper. He did so for the first seven months of the school year without any incident. No other students ever made an issue of Ash using the boys’ bathroom. Ash did not discuss this decision with administrators or teachers, because he understood it to be his legal right.
37. In late February 2016, after observing Ash using a boys’ bathroom, a Tremper teacher advised two assistant principals, Geiger and Wendy LaLonde, of that fact. Geiger then
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informed the other administrators of Ash’s restroom use and asked them what the school’s policy was.
38. Aiello, LaLonde, Geiger, and the third assistant principal, Holly Graf, agreed that, although neither KUSD nor Tremper had any existing written policy on students’ restroom usage, the school’s policy should be that transgender students, including Ash, would not be permitted to use school restrooms corresponding to their gender identity. Consistent with the school’s previous decision in spring 2015, they decided that Ash would not be permitted to use the boys’ restroom and, instead, would only be permitted to use the girls’ restrooms or the singleuser restroom in the school office.
39. Following that decision, Graf emailed Ash’s guidance counselor, Tronvig, and requested that Tronvig relay the school’s restroom policy to Ash and his mother. Tronvig responded by email that she did not know what that policy was. Graf and Tronvig then met in person and Graf explained to Tronvig that Ash would not be permitted to use the boys’ restrooms.
40. In late February 2016, Tronvig called Ms. Whitaker to inform her of the administration’s decision that Ash would only be permitted to use the girls’ restrooms or the single-user restroom in the school’s main office.
41. When Ash learned about the school’s decision, in early March 2016, he was distressed. He felt humiliated and deeply uncomfortable by the idea of using a girls’ restroom, even more so than the previous year—because he is not a girl, he had not used female-designated restrooms at school or elsewhere for a long time, and because using the girls’ restrooms as a boy risked subjecting him to ridicule, scrutiny, stigma, and harassment by other students and school staff. For the reasons alleged above, he also felt deeply uncomfortable with using the single-user
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main office restroom. He believed that either alternative would imply his status as a transgender boy required him to be segregated from other students, despite the fact that he had used the boys’ restrooms regularly and otherwise been treated as a boy by nearly everyone in the school community for many months.
42. Ash was also afraid of what disciplinary consequences he might face if he failed to comply with the school’s policy. Faced with two unacceptable options proposed by the school administrators, Ash continued to use the boys’ restrooms, as he had been doing already. That approach was the only way Ash felt he could mitigate the physical harm that he would suffer if he refrained from all restroom use during the school day and during his after-school extracurricular activities. Because of his active involvement in after-school activities, a typical school day for Ash lasts from 7 a.m. to 4 or 5 p.m., i.e., 9 or 10 hours. Some activities require him to be on Tremper’s campus until as late as 10 p.m., a 15-hour day. These long days at school make avoiding restrooms altogether impossible.
43. Ash’s decision to use the boys’ restroom consistent with his legal right, though in defiance of school policy, nevertheless exacted an emotional toll. Ash became more depressed and anxious, grew distracted from his school work, and began to have trouble sleeping.
44. On or about March 10, 2016, Ash and his mother met with Graf and Tronvig. During that meeting, Graf referred to Ash exclusively by his birth name. In that meeting, Graf told Ms. Whitaker that the reason Ash could not use the boys’ restrooms was because he could only use restrooms consistent with his gender as listed in the school’s official records. Graf said that the only way the school could change Ash’s gender in its records would be if the school received legal or medical documentation confirming his transition to male.
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45. Ms. Whitaker explained that, to her knowledge, Ash was too young for transitionrelated surgery. Graf repeated that the school would need some kind of medical documentation, but declined to indicate what type of medical “documentation” would be sufficient to demonstrate that Ash’s gender marker should be changed on his school records and that he could use boys’ restrooms.
46. In response, Ms. Whitaker contacted Ash’s pediatrician. The pediatrician faxed a letter to the school on or about March 11, 2016, confirming that Ash is a transgender boy and recommending that Ash be allowed to use male-designated facilities at school. At Ms. Whitaker’s request, the pediatrician subsequently sent the school a second letter, reiterating her recommendation about Ash’s restroom usage.
47. Despite the letters from Ash’s doctor, Aiello emailed Ms. Whitaker that the school would continue to deny boys’ restroom access to Ash because he had not completed a medical transition.
48. Ash continued to use the boys’ restrooms when needed, but he mainly attempted to avoid using restrooms altogether by not drinking or eating while at school, in order to avoid the scrutiny, fear, and humiliation he faced when he had to use a restroom at school. His anxiety and depression increased further. He also experienced increased physical symptoms relating to his vasovagal syncope, including dizziness, nearly fainting, and migraines. Ash returned to see his pediatrician in late March 2016 to have his symptoms evaluated. The pediatrician again instructed him to eat and drink regularly to avoid those symptoms. Nonetheless, Ash was unable to comply with those instructions, out of fear of using the restrooms at school. Concerned about his physical health, his mother would regularly hand him a bottle of water and tell him to drink it
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to avoid dehydration, and he would refuse, saying that he did not want to have to use the restroom.
49. On or about March 17, 2016, Geiger observed Ash as he entered a boys’ restroom, and reported that fact to Graf. Minutes later, Graf insisted that Ash leave his acting class and come to her office, and met with him alone for half an hour, lecturing him about his use of the boys’ restrooms.
50. During that same meeting, Graf asked Ash why he was not using the girls’ restroom or single-user restroom as directed. He informed her that the school’s policy violated his rights as a transgender student under Title IX. When Ash made clear he could not use girls’ restrooms because he is not a girl, she again asked him to compromise and use the single-user restroom in the main office. He again refused because of the humiliation, stigma, and lost class time that he would face using that bathroom. Graf then reiterated her instruction that Ash cease his use of boys’ restrooms.
51. During that March 17 meeting—as well as at virtually all other times—Graf consistently referred to Ash using his traditionally female birth name and female pronouns, despite Ash’s request that she use his new name and male pronouns. In that meeting, when Ash became upset by Graf’s restroom directive and refusal to respect his male gender, Graf said, “S-----, calm down,” using his birth name. Ash, angry and embarrassed, said, “No, I’m leaving,” and left the office.
52. During that meeting, Graf directly threatened that Ash would be subject to disciplinary action if he continued to use the boys’ restrooms. Specifically, she indicated Ash would have to “go down to 109 or 203”—referring to Room 109, the in-school suspension room, and Room 203, the school’s disciplinary office.
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53. Following the meeting with Graf, Ash began to cry in the hallway. He had difficulty concentrating in his classes for the remainder of the day, holding back tears. He skipped work that afternoon and did not do any homework. Instead, he just went home after school and lay in bed feeling terrible.
54. When he absolutely needed to use the restroom, Ash continued to use the boys’ restrooms exclusively through June 9, 2016, the final day of the school year. As a result, Graf continued to call Ash, his mother, or both into her office for periodic meetings. At those meetings, Graf would inquire about Ash’s restroom use, and, when told he was still using the boys’ restrooms, would repeat the school’s policy that he must use the girls’ restroom or a single-user restroom. During these meetings, Graf continued to refer to Ash by his birth name and female pronouns.
55. Ash grew increasingly embarrassed by Graf’s repeated inquiries about his restroom use, which he felt to be an invasion of his privacy. Since each meeting with administrators occurred during class time, Ash was also concerned about the effect of these repeated meetings on his academic performance and feared that he would face scrutiny from other students and teachers about why he was being removed from class so frequently. Ash, who continued to have no disciplinary record at the school, also became more worried about the increasingly real prospect of disciplinary consequences that might affect his ability to participate in extracurricular activities and negatively impact his college application process in the upcoming school year.
56. In April 2016, Ms. Whitaker learned that school administrators had sent an email to all of the school’s security guards, instructing them to notify administrators if they spotted any
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students who appear to be going into the “wrong” restroom. Individual security guards later told Ms. Whitaker that they understood the directive to be targeted at Ash.
57. Ash felt very uncomfortable and distressed knowing that security guards and administrators were actively monitoring his restroom use.
58. On April 5, 2016, Ms. Whitaker was pulled out of her Tremper classroom and summoned to a meeting with two KUSD district-level administrators: Dr. Bethany Ormseth, KUSD’s Chief of School Leadership, and Susan Valeri, KUSD’s Chief of Special Education and Student Support.
59. In that meeting, Ms. Whitaker asked Ormseth and Valeri whether KUSD had adopted any policy concerning transgender students and restroom use. They provided no answer to Ms. Whitaker’s question, other than to say that a policy was in the process of being created by a committee of the school board. Ms. Whitaker responded, “You don’t need a policy—it’s a federal law.” Later in the school year, Ms. Whitaker learned that Rebecca Stevens, a KUSD school board member, had contradicted Ormseth and Valeri’s account, stating to another board member that no committee had yet been formed and no policy was being written.
60. In fact, despite repeated requests by Ms. Whitaker to see the written policy about transgender students’ restroom use during the course of the 2015-2016 school year, no Tremper or KUSD official has ever provided such a policy. Ms. Whitaker reasonably believes no such policy exists. Rather, the Tremper administration developed and enforced a school “policy” in direct and specific response to those administrators’ discomfort with the restroom usage of one student: Ash.
61. The next day, on April 6, 2016, Ash and Ms. Whitaker attended a meeting with Aiello, Graf, and Valeri. At that meeting, the administrators offered Ash a further
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“accommodation” regarding his restroom use: they informed him that he would also be allowed to use two single-user restrooms located on the far opposite sides of campus. Those restrooms had previously been available for any student’s use, but new locks had been installed and Ash alone was given the key to open them. The stigma of being assigned personal, segregated restrooms—to which he alone of all the 1,695 students in the building had a key—caused Ash additional significant emotional distress. In addition, neither of these single-occupancy restrooms was convenient to Ash’s classes and would have required him to miss more class time than his peers if he used those restrooms during class.
62. At the April 6 meeting, Ash asked Valeri for KUSD’s rationale for prohibiting his use of the boys’ restrooms. Valeri replied with a statement to the effect of, “Well, we’ve never had a student who identifies as male but was born female.”
63. Ash replied by asserting that Title IX prohibits discrimination based on sex, which protects transgender students and requires schools to permit them to use restrooms consistent with the student’s gender identity.
64. Valeri denied that Title IX protects transgender students’ access to bathrooms consistent with their gender identity.
65. When Ash asked Valeri to explain her understanding of Title IX, she refused to do so, stating words to the effect of, “I don’t think I’m going to give you any reasons.”
66. In order to avoid disciplinary sanctions from Tremper administrators for using boys’ restrooms on the one hand, and the scrutiny and embarrassment that would result from using individually assigned restroom facilities on the other, Ash continued to avoid using school restrooms as much as possible. He has never used the designated locked single-user restrooms, as doing so would call unwanted attention to himself by using a key to enter a restroom to which
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no other student has access, and because of his desire not to spend unnecessary time out of class traveling to those inconveniently located restrooms.
67. As a result of the stress caused by the school’s discriminatory actions, and his attempts to avoid using any restrooms at school, Ash’s migraines and episodes of fainting and dizziness continued to worsen. His depression, anxiety, and dysphoria also deepened. He became severely depressed and lethargic, and no longer wanted to get out of bed in the morning.
68. Due to the serious consequences the school’s actions were having on Ash’s physical and psychological well-being, he considered withdrawing from Tremper and transferring to an online school to finish high school. He ultimately decided not to withdraw at that time, due to his involvement in activities like the school orchestra that would not be available if he were enrolled in an online school, and because changing schools would put him further behind in his classwork.
School’s Refusal to Permit Ash to Be Considered for Junior Prom King 69. Tremper High’s junior prom was scheduled for May 7, 2016. In late March, the faculty advisor for the junior prom, Lorena Danielson, submitted the names of candidates for the prom court to Aiello. Candidates for prom king and queen are required to earn volunteer hours in order to participate and whoever earns the most hours is selected for prom court. Based on his community service hours, the junior prom advisor designated Ash as a candidate for prom king and then met with Aiello to confirm the list. 70. After meeting with the junior prom advisor, Aiello called Ms. Whitaker in for a meeting with him and Graf on or about March 22, 2016, during which he told her that Ash could be on the prom court, but could only be a candidate for prom queen, not prom king. When Ash learned about this, he was devastated. He was humiliated at the prospect of running for prom
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queen, when all his classmates knew him to be a boy. He felt deeply disrespected and angry that the administrators failed to recognize how hurtful and unfair this additional form of discrimination was.
71. On April 4, 2016, Ash and his friends presented a MoveOn.org petition to Tremper administrators demanding that Ash be allowed to run for prom king and to use the boys’ restrooms at school, which was signed by many members of the Tremper community and thousands of others around the country. When administrators failed to respond, on April 5, 2016, 70 students participated in a sit-in at Tremper’s main office to show their support for Ash. The students held signs expressing the view that transgender students should be treated equally, and supporting Ash’s right to be allowed to run for prom king and to use the boys’ restrooms at school.
72. Following the sit-in and media attention about KUSD’s treatment of Ash, in the April 6, 2016 meeting referenced above, Aiello, Graf, and Valeri informed Ash and Ms. Whitaker that Ash would be permitted to run for prom king.
73. Although Ash was pleased to have the opportunity to run for prom king and heartened by the outpouring of support from his classmates, he continued to feel deeply distressed as a result of the school administrators’ initial decision that he could only run for prom queen and their continued pattern of refusing to recognize or respect his male gender identity.
Name and Gender in School Records 74. KUSD has not changed Ash’s name on his official records and other documents, including classroom attendance rosters used by his teachers. Although most of Ash’s teachers refer to him by his male name, substitute teachers have frequently referred to him by his birth name in front of his classmates because that is the name that appears on the attendance rosters.
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In response, and in order to avoid embarrassment or discomfort from his classmates, Ash has been compelled to approach all of his teachers at the beginning of each term to advise them of his preferred name and pronouns and request that they do not refer to him by his birth name. He similarly must approach substitute teachers before class every time a teacher is absent. Although some teachers note his correct name on the class roster, others have not documented that name on the roster, and occasionally substitute teachers still refer to him by his birth name in class. Being called a traditionally female name in front of all his classmates reveals that he is transgender to all of his peers and makes Ash feel embarrassed and distressed. The practice has resulted in Ash experiencing increased symptoms of Gender Dysphoria, including anxiety and depression.
75. In the meetings with administrators on March 6 and March 22, Ms. Whitaker requested that the school change Ash’s name and gender in its official records to avoid those problems. In both meetings, Graf told Ms. Whitaker that in order to change Ash’s name or gender in the school’s official records, the school would need to see legal or medical documentation. The medical documentation Ash’s pediatrician sent was deemed insufficient, although Graf and Aiello refused to specify what the contents of acceptable documentation would be, despite repeated requests for clarification. They also failed to specify what type of “legal documentation” would be necessary to update the school records.
76. In August 2016, Ash filed a petition in Kenosha county court seeking a courtordered name change, which is pending as of the date of this Amended Complaint. Even if KUSD is unable to change Ash’s name or gender in its official school records because Ash has not yet obtained a legal name change, KUSD can and should take steps to avoid intentional or inadvertent disclosure of Ash’s birth name or sex assigned at birth to KUSD employees or
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students, including by modifying informal or public-facing documents, such as attendance rosters, to reflect Ash’s male name and male gender.
Other Harassing and Stigmatizing Treatment Faced by Ash at School 77. After news broke about the petition for Ash to run for prom king and use boys’ restrooms at school, some parents and other Kenosha residents began to speak out in opposition to Ash’s right to use boys’ restrooms. On May 10, 2016, shortly after the junior prom, at a meeting of the Board, several community members spoke in opposition to allowing transgender students to use restrooms in accordance with their gender identity. One parent told the Board that he was opposed to permitting transgender students to use gender-appropriate restrooms because such a policy would permit sexual predators to enter women’s restrooms and put his daughters at risk. 78. That person’s wife, who volunteers as a pianist with the school orchestra, has created and maintains a public Facebook group called “KUSD Parents for Privacy,” which contains numerous posts critical of transgender students’ rights. Several posts on that page have mentioned Ash and his mother by name, accompanied by their photographs. One post, on May 14, 2016, linked to an article about Ash, contains a photograph of him and his mother, and describes him as a “pawn.” 79. At an orchestra rehearsal at the school on May 11, 2016, the day following the Board meeting at which her husband spoke, this woman approached Ash, put her hands on his shoulders, and said words to the effect of, “A----, honey, this isn’t about you, this is bigger than you. I’m praying for you.” Ash was extremely uncomfortable and embarrassed, and did not respond. Ms. Whitaker and Ash later brought this incident to Aiello’s attention. Aiello requested that Breitenbach-Cooper, the orchestra teacher, call the volunteer to advise her not to
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talk to students like that, but took no further action. Nothing changed as a result. She is still a regular volunteer with the school orchestra and has continued to attend every rehearsal. Her constant presence substantially diminishes Ash’s enjoyment of an extracurricular activity that has formed an important part of his educational experience at Tremper.
Green Wristbands to Mark Transgender Students 80. In May 2016, Ash’s guidance counselor, Tronvig, showed Ms. Whitaker what appeared to be a bright green wristband (comprised of green adhesive stickers). Tronvig told Ms. Whitaker that a school administrator had given her these wristbands with the instruction that they were to be given to any student who identified himself or herself as transgender. Ms. Whitaker understood this to mean that the school intended to use the wristbands to mark students who are transgender and monitor their restroom usage. Upon information and belief, other guidance counselors were also provided these wristbands and instructed them to give them to transgender students. 81. Branding transgender students in this way would single them out for additional scrutiny, stigma, and potentially harassment or violence, and violate their privacy by revealing their transgender status to others. 82. Upon learning about the school’s proposed green wristband practice, Ash felt sickened and afraid. He was aware of the prevalence of violent attacks against transgender people nationwide, and grew very afraid that the school would attempt to force him to wear the wristband on penalty of discipline. If he did wear the wristband, he knew that other students would likely ask him repeatedly why he was wearing it, and he would have to explain over and over that he is transgender. He expected that some students would stare, and others would outright ridicule him. He felt like his safety would be even more threatened if he had to wear this visible badge of his transgender status.
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83. To Plaintiff’s knowledge, the green wristband practice proposed at the end of the school year may be implemented in the new school year, such that guidance counselors will be expected to provide these wristbands to transgender students in the upcoming school year.
Overnight Accommodations at Summer Orchestra Camp 84. Ash participated in a five-day, school-sponsored summer orchestra camp from June 12-16, 2016. The camp was held on the campus of the University of Wisconsin-Oshkosh, and students stayed in dormitories on campus. The dorms used for the camp were suites with two to four bedrooms and a common living room, kitchenette, and two single-occupancy restrooms. Each suite had either four separate, single-occupancy bedrooms, or two doubleoccupancy rooms. During the evenings, school chaperones placed tape across each of the bedroom doorways to prevent students from leaving the bedrooms at night. The suites were designated either male or female. 85. In advance of the camp, the school allowed students to sign up for dorm rooms with their friends. Ash had signed up to stay in a boys’ suite with one of his best friends, a male student. 86. Breitenbach-Cooper, the orchestra teacher, told Aiello about Ash’s request to stay in the same suite as his friend and other male students. Aiello replied that Ash could not do so because, under Tremper’s policy, he could not stay with other boys. Aiello told BreitenbachCooper that Ash would have to stay in a suite with girls or alone in a suite, segregated from all of his peers. 87. In order to participate in the orchestra camp, Ash reluctantly agreed to stay in double-bedroom suite all alone, with no other students sharing the suite. He rejected the “option” to stay in a suite with girls because he is a boy and he felt uncomfortable staying with girls.
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88. This arrangement excluded Ash from socializing with other students during the entire five-day camp. Students were prohibited from entering other suites, and could only socialize within their own suite or in common areas of the building. Since almost all the other students remained in their suites to socialize in the evenings, Ash stayed in his room alone each evening while the other students enjoyed time to socialize with their friends. He felt lonely and depressed, and disappointed that he was not able to have the same good memories of his final year at camp as all the other students.
89. The school’s decision to segregate Ash from the other boys also left him feeling hurt and embarrassed. He understood the school’s decision to be based on a perception that he might engage in sexual activity with another boy, and he felt degraded and humiliated by the idea that administrators were thinking about him in those terms.
District’s Failure to Change its Discriminatory Policies after Notice of Legal Obligations 90. Ash and Ms. Whitaker have repeatedly advised KUSD officials that their actions
violate Ash’s right to attend school free from sex discrimination, as required by Title IX and the Equal Protection Clause. Despite being put on notice of the violations of Ash’s statutory and constitutional rights, KUSD has refused to change its policies to date.
91. On April 19, 2016, through his attorneys, Ash sent a letter to Superintendent Savaglio-Jarvis demanding that KUSD permit him to use boys’ restrooms at school.
92. By letter of April 26, 2016, KUSD’s attorneys responded, acknowledging their awareness of U.S. Department of Education guidance documents interpreting Title IX to protect students from discrimination based on their gender identity—as well as the Fourth Circuit’s April 19, 2016 opinion in G.G. v. Gloucester County School Board, a Title IX case brought by a transgender high school student who was denied access to boys’ restrooms at school, in which
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that appeals court deferred to the Department of Education’s interpretation of Title IX and held that the plaintiff student was entitled to restroom access consistent with his gender identity. The letter nevertheless maintained that KUSD is not bound by these authorities and would not change its position on Ash’s restroom use.
93. On May 12, 2016, Ash filed an administrative complaint with the U.S. Department of Education Office for Civil Rights (“OCR”), alleging that KUSD’s actions violated Ash’s rights under Title IX. Shortly before filing this lawsuit, Plaintiff’s attorneys contacted OCR and requested to withdraw that complaint, without prejudice.
94. On May 13, 2016, the U.S. Department of Education and U.S. Department of Justice issued a joint guidance letter to all public schools, colleges, and universities in the country receiving Federal financial assistance, reiterating the federal government’s previously stated position that, pursuant to Title IX, all public schools are obligated to treat transgender students consistent with their gender identities in all respects, including regarding name and pronoun usage, restroom access, and overnight accommodations.
95. Following the issuance of the federal guidance on May 13, 2016, KUSD officials publicly acknowledged the guidance but stated that they did not believe they were required to comply with it. KUSD issued a statement declaring, “[t]he Department of Education’s . . . letter is not law; it is the Department’s interpretation of the law,” suggesting that it would not change its policy absent a court order.
96. To date, the Board has not articulated or adopted any formal policy regarding transgender students in KUSD’s schools.
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97. Based on the statements and actions of KUSD officials, Ash feels deep anxiety and dread about experiencing continued discrimination during his senior year and the effect that it will have on him during the college application process.
INJURY TO PLAINTIFF 98. Through their actions described above, Defendants have injured and are continuing to injure Plaintiff. 99. Defendants have denied Ash full and equal access to KUSD’s education programs and activities by denying him the full and equal access to student restrooms and overnight accommodations during school-sponsored trips offered to other male students. 100. Ash has experienced and continues to experience the harmful effects of being segregated from, and treated differently than, his male classmates at school and during schoolsponsored events, including lowered self-esteem, embarrassment, social isolation, and stigma, as well as heightened symptoms of Gender Dysphoria, including depression and anxiety. 101. When school administrators and staff intentionally used his birth name or female pronouns (or allowed others to do so), instructed him not to use the boys’ restrooms, instructed security personnel to surveil his movements, and otherwise undermined his male identity and singled him out as different from all other boys, he has felt deeply hurt, disrespected, and humiliated. 102. Defendants’ discriminatory actions, and the efforts Ash has made to comply with the directive not to use the boys’ restroom—limiting food and drink while at school—have led to a host of physical symptoms, including dehydration, dizziness, fainting, and migraines. All of those symptoms virtually disappeared once Ash returned home from the orchestra camp and
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summer break began, and Ash was no longer facing daily scrutiny and anxiety and could eat and drink at a healthy level.
103. As a direct and continuing result of Defendants’ discriminatory actions, Ash has suffered increased and continuing emotional distress over the last six months. He has experienced escalating symptoms of depression and anxiety, and his self-esteem has suffered, as a result of the discrimination he has experienced at school. Although he cried very little in the past, he frequently cries and fights back tears.
104. As a result of the depression and anxiety Defendants’ actions caused, Ash has also had difficulty eating and sleeping properly, and difficulty concentrating in classes and on his homework.
105. As a result of Defendants’ actions, and the feelings of fear and scrutiny he has grown used to, Ash now feels unsafe being outside of the house, afraid that he will be targeted for an assault by someone who knows he is transgender. He will typically only go out in groups of friends, and tries to avoid ever going out with only one other friend or alone.
106. Ash has also missed significant class time due to being compelled by KUSD officials to participate in repeated, lengthy meetings during class time to discuss his use of restrooms, his name and gender in school records, and the school’s determination that he would be prohibited from running for prom king.
107. All of the above discriminatory treatment has undermined the efficacy of the social transition component of his gender transition and heightened his symptoms of Gender Dysphoria.
108. If Defendants refuse to grant Ash access to boys’ restrooms by the time his senior year begins on September 1, 2016, he will likely experience the same social stigma, emotional
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distress, academic harm, and detrimental impediments to his gender transition resulting from Defendants’ conduct that he experienced during his junior year.
CAUSES OF ACTION First Cause of Action Violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. 109. Plaintiff realleges and incorporates the facts and allegations contained in paragraphs 1 through 108 as fully set forth herein. 110. Under Title IX and its implementing regulations, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see also 34 C.F.R. § 106.31 (Department of Education Title IX regulations); 7 C.F.R. § 15a.31 (Department of Agriculture Title IX regulations); 45 C.F.R. § 86.31 (Department of Health and Human Services Title IX regulations). Title IX’s prohibitions on sex discrimination extend to “any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient” of federal funding. 34 C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31. 111. Title IX’s prohibition on discrimination “on the basis of sex” encompasses discrimination based on an individual’s gender identity, transgender status, and gender expression, including nonconformity to sex- or gender-based stereotypes. 112. Conduct specifically prohibited under Title IX includes, inter alia, treating one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; providing different aid, benefits, or services in a different manner; denying any person any such aid, benefit, or service; or otherwise
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subjecting any person to separate or different rules of behavior, sanctions, or other treatment. 34 C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31.
113. As a Federal funding recipient, Defendant Kenosha Unified School District No. 1 Board of Education, including the academic, extracurricular, and other educational opportunities provided by the Kenosha Unified School District and Tremper High School, is subject to Title IX’s prohibitions on sex- and gender-based discrimination against any student.
114. As set forth in paragraphs 28 to 98 above, Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from accessing male-designated restrooms at school, and requiring that he use female-designated restrooms or single-occupancy restrooms, have discriminated and continue to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, and thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex, in violation of Title IX.
115. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on school-sponsored trips, and requiring him to stay in female-designated overnight accommodations or segregated accommodations on those trips, has discriminated and continues to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, and thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational
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opportunities offered by KUSD and Tremper High School, on the basis of sex, in violation of Title IX.
116. Defendants have further violated Title IX by failing to recognize fully and respect Plaintiff, a transgender boy, as a male student, including through administrators’ repeated and intentional use of Plaintiff’s traditionally female birth name and female pronouns to address him and refer to him to others; the failure to take necessary and appropriate action to update or modify Ash’s official and/or informal student records, including classroom attendance rosters, to prevent teachers, substitute teachers, and other school staff from referring to him by his female birth name and female pronouns in the presence of other students; Tremper administrators’ initial refusal to permit Ash to run for junior prom king and directive that he run for prom queen instead, withdrawn only after a student protest and media attention; and Tremper administrators’ instruction to school guidance counselors to provide green wristbands to transgender students. Through these actions, individually and collectively, Defendants have and continue to exclude Plaintiff from participation in, deny him the benefits of, and subject him to discrimination in KUSD’s education programs and activities, on the basis of sex, in violation of Title IX.
117. Defendants, through instructing Tremper staff to report the restroom use of any student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their rights under Title IX to be free from discrimination on the basis of sex, including on the basis of gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in further violation of Title IX.
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118. Plaintiff has been, and continues to be, injured by Defendants’ discriminatory conduct and has suffered damages as a result.
Second Cause of Action Violation of 42 U.S.C. § 1983 Based on Deprivation of Plaintiff’s Rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 119. Plaintiff realleges and incorporate the facts and allegations contained in paragraphs 1 through 108 as fully set forth herein. 120. Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, discrimination based on sex, including gender, gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, as well as discrimination based on transgender status alone, is presumptively unconstitutional and is therefore subject to heightened scrutiny. 121. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from accessing male-designated restrooms at school, and requiring that he use female-designated restrooms or single-occupancy restrooms, have discriminated and continue to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex and transgender status, in violation of the Equal Protection Clause. 122. Defendants, by adopting and enforcing a policy or practice of prohibiting Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on school-sponsored trips, and requiring him to stay in female-designated overnight
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accommodations or segregated accommodations on those trips, has discriminated and continues to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by treating him differently from other male students based on his gender identity, the fact that he is transgender, and his nonconformity to male stereotypes, thereby denying him the full and equal participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by KUSD and Tremper High School, on the basis of sex and transgender status, in violation of the Equal Protection Clause.
123. Defendants have further violated Plaintiff’s rights under the Equal Protection Clause by failing to recognize fully and respect Plaintiff, a transgender boy, as a male student, including through administrators’ repeated and intentional use of Plaintiff’s traditionally female birth name and female pronouns to address him and refer to him to others; the failure to take necessary and appropriate action to update or modify Ash’s official and/or informal student records, including classroom attendance rosters, to prevent teachers, substitute teachers, and other school staff from referring to him by his female birth name and female pronouns in the presence of other students; Tremper administrators’ initial refusal to permit Ash to run for junior prom king and directive that he run for prom queen instead, withdrawn only after a student protest and media attention; and Tremper administrators’ instruction to school guidance counselors to provide green wristbands to any student who identified himself or herself as transgender. Through these actions, individually and collectively, Defendants have and continue to exclude Plaintiff from participation in, deny him the benefits of, and subject him to discrimination in KUSD’s education programs and activities, on the basis of sex and transgender status, in violation of the Equal Protection Clause.
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124. Defendants, through instructing Tremper staff to report the restroom use of any student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their rights to be free from discrimination on the basis of sex, including on the basis of gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in further violation of the Equal Protection Clause.
125. Defendants’ discrimination against Ash is not substantially related to any important governmental interest, nor is it rationally related to any legitimate governmental interest.
126. Defendants are liable for their violation of Ash’s Fourteenth Amendment rights under 42 U.S.C. § 1983.
127. Plaintiff has been, and continues to be, injured by Defendants’ conduct and has suffered damages as a result.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Ash Whitaker, by and through his mother and next friend, Melissa Whitaker, requests that this Court: (a) enter a declaratory judgment that the actions of Defendants complained of herein are in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (b) issue preliminary and permanent injunctions (i) directing Defendants to provide Plaintiff access to male-designated restrooms at school, and otherwise to treat him as a boy in all respects for the remainder of his time as a student in Defendants’ schools or until resolution of
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this lawsuit, whichever is later; (ii) restraining Defendants, their agents, employees, representatives, and successors, and any other person acting directly or indirectly with them, from adopting, implementing, or enforcing any policy or practice at the school or District level that treats transgender students differently from their similarly situated peers (i.e., treating transgender boys differently from other boys and transgender girls differently from other girls); (iii) directing Defendants to clarify that KUSD and Tremper’s existing policies prohibiting discrimination on the basis of sex apply to discrimination based on gender identity, transgender status, and nonconformity to sex- and gender-based stereotypes; (iv) ordering Defendants to provide training to all district-level and school-based administrators in the Kenosha Unified School District on their obligations under Title IX and the Equal Protection Clause regarding the nondiscriminatory treatment of transgender and gender nonconforming students; and (v) ensuring that all district-level and school-based administrators responsible for enforcing Title IX, including Defendants’ designated Title IX coordinator(s), are aware of the correct and proper application of Title IX to transgender and gender nonconforming students;
(c) order all compensatory relief necessary to cure the adverse educational effects of Defendants’ discriminatory actions on Plaintiff’s education;
(d) award compensatory damages in an amount that would fully compensate Plaintiff for the emotional distress and other damages that have been caused by Defendants’ conduct alleged herein;
(e) award Plaintiff his reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
(f) order such other relief as this Court deems just and equitable.
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Dated: August 15, 2016

Respectfully submitted,
Ilona M. Turner* Alison Pennington* Sasha J. Buchert* Shawn Thomas Meerkamper* TRANSGENDER LAW CENTER 1629 Telegraph Avenue, Suite 400 Oakland, CA 94612 Phone: (415) 865-0176 Fax: (877) 847-1278 ilona@transgenderlawcenter.org alison@transgenderlawcenter.org sasha@transgenderlawcenter.org shawn@transgenderlawcenter.org

/s Joseph J. Wardenski Joseph J. Wardenski Michael Allen** RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 Phone: (202) 728-1888 Fax: (202) 728-0848 jwardenski@relmanlaw.com mallen@relmanlaw.com

Robert (Rock) Theine Pledl PLEDL & COHN, S.C. 1110 N. Old World Third Street, Suite 215 Milwaukee, WI 53203 Phone: (414) 225-8999 Fax: (414) 225-8987 rtp@pledlcohn.com

* Application for admission to this Court to follow ** Application for admission to this Court pending

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
ASHTON WHITAKER, a minor, by his Mother and next friend, MELISSA WHITAKER,
Plaintiff, Case No. 16-CV-943-PP
v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS, in her official capacity As Superintendent of the Kenosha Unified School District No. 1,
Defendants.
DECISION AND ORDER GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 10)
I. INTRODUCTION On July 19, 2016, the plaintiff, Ashton Whitaker, filed this action against
the defendants, Kenosha Unified School District and Sue Savaglio-Jarvis, in her official capacity as the Superintendent of the Kenosha Unified School District. Dkt. No. 1. In his complaint (amended on August 15th), the plaintiff alleges that the treatment he received at Tremper High School after he started his female-to-male transition violated Title IX, 20 U.S.C. §1681, et seq., and the Equal Protection clause of the Fourteenth Amendment. Dkt. Nos. 1, 12. On August 15, 2016, the plaintiff also filed a motion for a preliminary injunction. Dkt. No. 10. The defendants filed a motion to dismiss the next day. Dkt. No.
1
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14. Both motions were fully briefed by August 31, 2016. Dkt. Nos. 11, 15, 17, 19, 21, 22. Following oral arguments on the motions on September 6, 19 and 20, the court issued an oral ruling denying the defendants’ motion to dismiss. Dkt. No. 28. See also, Dkt. No. 29 (order denying motion to dismiss). For the reasons stated at the September 20, 2016 hearing, and supplemented here, the court grants in part the plaintiff’s motion for preliminary injunction. Dkt. No. 10.
II. BACKGROUND The plaintiff, Ash Whitaker, is a student at Tremper High School, a
public high school in the Kenosha Unified School District (KUSD). Dkt. No. 12 at ¶6. The plaintiff’s mother, Melissa Whitaker, brought this action as his next friend. Id. at ¶7. She is also a high school teacher at Tremper. Id.
The plaintiff’s birth certificate identifies him as female, and he lived as a female until middle school. Id. at ¶21. Around seventh grade, in late 2013, the plaintiff asked his mother about treatment for transgender individuals. Id. at ¶¶21-23; Dkt. 10-2 at 17. He later was diagnosed by his pediatrician with Gender Dysphoria. Dkt. No. 12 at ¶¶15, 25. “Gender Dysphoria is the medical and psychiatric term for gender incongruence.” Dkt. No. 10-2 at 6. Individuals with gender dysphoria suffer extreme stress when not presenting themselves and living in accordance with their gender identity. Id. Treatment for gender dysphoria consists of transitioning to living and being accepted by others as the sex corresponding to the person’s gender identity. Dkt. No. 12 at ¶17. To pursue medical interventions, a person with gender dysphoria must live in
2
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accordance with their gender identity for at least one year. Id. at ¶18. If left untreated, gender dysphoria may result in “serious and debilitating” psychological distress including anxiety, depression, and even self-harm or suicidal ideation. Dkt. No. 10-2 at 6-7; Dkt. No. 12 at ¶15. The plaintiff currently is under the care of a clinical psychologist, and began receiving testosterone treatment in July 2016. Id. at ¶25.
During the 2013-2014 school year, the plaintiff began telling close friends that he was a boy, and transitioning more publicly to live in accordance with his male identity. Id. at ¶23. At the beginning of his sophomore year (Fall 2014), the plaintiff told all of his teachers and peers about his transition, and asked that they refer to him using male pronouns and by his male name. Id. at ¶24. In the spring of 2015, the plaintiff asked to be allowed to use the boys’ restrooms at school. Id. at ¶27. The school administrators denied the request, stating that the plaintiff was allowed to use only the girls’ restroom or the single-user, gender-neutral restroom in the school office. Id. The plaintiff did not want to use the office restroom because it was far from his classes and only used by office staff and visitors. Id. at ¶28. Consequently, the plaintiff avoided drinking liquids, and using the bathroom at school for fear of being stigmatized as different. Id. at ¶29. During his sophomore year, the plaintiff experienced vasovagal syncope1, stress-related migraines, depression, anxiety and suicidal thoughts. Id. at ¶31.
1 “Vasovagal syncope . . . occurs when you faint because your body overreacts to certain triggers, such as the sight of blood or extreme emotional distress. It may also be called neurocardiogenic syncope.”
3
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Upon learning, over the summer of 2015, that the US Department of Justice had concluded that transgender students have the right to use restrooms in accordance with their gender identity, the plaintiff began using the male-designated bathrooms at school starting his junior year, September 2015. Id. at ¶35. He used the male bathroom without incident until late February 2016. Id. at ¶36-37. Despite the lack of any written policy on the issue, the school informed the plaintiff, in early March, that he could not use the boys’ restroom. Id. at 38. Nevertheless, to avoid the psychological distress associated with using the girls’ restroom or the single-user restroom in the office, the plaintiff continued to use the boys’ restrooms when necessary. Id. at ¶42.
The plaintiff and his mother met with an assistant principal and his guidance counselor on or about March 10, 2016 to discuss the school’s decision. Id. at 44. The assistant principal told him that he could use only the restrooms consistent with his gender as listed in the school’s official records, and that he could only change his gender in the records only if the school received legal or medical documentation confirming his transition to male. Id. Although the plaintiff’s mother argued that the plaintiff was too young for transition-related surgery, the assistant principal responded that the school needed medical documentation, but declined to indicate what type of medical documentation would be sufficient. Id. at 45. The plaintiff’s pediatrician sent two letters to the school, recommending that the plaintiff be allowed access to http://www.mayoclinic.org/diseases-conditions/vasovagal-syncope/home/ovc20184773 (last visited September 21, 2016).
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the boys’ restroom. Id. at 46. Despite lacking a written policy on the issue, id.
at ¶60, the school again denied the plaintiff’s request, because he had not
completed a medical transition, but failing to explain why a medical transition
was necessary. Id. at 47.
The plaintiff generally tried to avoid using the restroom at school, but
when necessary, he used the boys’ restroom. Id. at 48. Consequently, the
school directed security guards to notify administrators if they spotted
students going into the “wrong” restroom. Id. at ¶56. The school re-purposed
two single-user restrooms, which previously had been open to all students, as
private bathrooms for the plaintiff. Id. at ¶61. The plaintiff refused to use these
bathrooms, because they were far from his classes and because using them
would draw questions from other students. Id. Despite several more
confrontations with the school administration, id. at ¶¶49, 51, 54, the plaintiff
continued to use the boys’ restroom through the last day of the 2015-16 school
year. Id. at ¶54.2
The plaintiff started his senior year of high school on September 1, 2016.
As of the date of oral argument on this motion (September 20, 2016), the
school still refused to allow him to use the boys’ restroom, and the plaintiff
2 The plaintiff alleges other instances of discrimination: that the defendants refused to allow him to room with male classmates during two summer orchestra camps, resulting in his having to room alone, id. at ¶¶33-34, 86; that the defendants directed guidance counselors to give transgender students a bright green bracelet to wear (the defendants dispute this, and as of this writing, the school has not implemented such a policy), id. at ¶¶80; and the school initially refusing to allow the plaintiff to run for prom king, id. at ¶¶7172. For the reasons the court discussed on the record at the September 19, 2016 hearing, th decision decides only the request to enjoin the defendants from prohibiting the plaintiff from using the boys’ restrooms.
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continued to avoid the restrooms generally, using the boys’ restroom when needed.
The plaintiff seeks the following relief: an order (1) enjoining the defendants from enforcing any policy that denies the plaintiff’s access to the boys’ restroom at school and school-sponsored events; (2) enjoining the defendants from taking any formal or informal disciplinary action against the plaintiff for using the boys’ restroom; (3) enjoining the defendants from using, causing or permitting school employees to refer to the plaintiff by his female name and female pronouns; (4) enjoining the defendants from taking any other action that would reveal the plaintiff’s transgender status to others at school, including the use of any visible markers or identifiers (e.g. wristbands, stickers) issued by the district personnel to the plaintiff and other transgender students. Dkt. No. 10 at 2.
As discussed in the oral arguments before the court, this decision only addresses the first two requests; the court denied the orally denied the fourth request without prejudice at the September 19, 2016 hearing, and the court defers ruling on the third request to allow counsel for the defendants to discuss with his client recent developments, such as the plaintiff’s legal name change and this court’s denial of the defendants’ motion to dismiss. III. DISCUSSION
A. Preliminary Injunction Standard “A preliminary injunction is an extraordinary equitable remedy that is available only when the movant shows clear need.” Turnell v. CentiMark Corp.,
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796 F.3d 656, 661 (7th Cir. 2015) (citing Goodman v. Ill. Dep’t of Fin. and Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005)). “[A] district court engages in a two-step analysis to decide whether such relief is warranted.” Id. (citing Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1085–86 (7th Cir.2008)). The first phase requires the “party seeking a preliminary injunction [to] make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Id. at 661-62.
If the movant satisfies the first three criteria, the court then considers “(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties (the ‘public interest’).” Id. at 662. When balancing the potential harms, the court uses a ‘sliding scale’: “the more likely [the plaintiff] is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Id.
B. The Plaintiff Has Shown a Likelihood That His Claims Will Succeed on the Merits.
“The most significant difference between the preliminary injunction phase and the merits phase is that a plaintiff in the former position needs only to show ‘a likelihood of success on the merits rather than actual success.’” Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 782 (7th Cir. 2011)
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(quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12 (1987)). In the Seventh Circuit, the court “only needs to determine that the plaintiff has some likelihood of success on the merits.” Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 896 (7th Cir. 2001). As the plaintiffs argued, this is a relatively low standard.
The arguments the parties made on September 20, 2016 regarding the motion for preliminary injunction mirror the arguments they made on September 19, 2016 regarding the motion to dismiss. Essentially, the defendants argue that gender identity is not encompassed by the word “sex” in Title IX, and the plaintiff disagrees. The defendants also argue that under a rational basis standard of review, the plaintiffs cannot sustain an equal protection claim; the plaintiffs respond that they can, and further, that the court should apply a heightened scrutiny standard.
The court denied the motion to dismiss because it found that there were several avenues by which the plaintiff might obtain relief. Dkt. No. 28. The court found that, because no case defines “sex” for the purposes of Title IX, the plaintiff might succeed on his claim that that word includes transgender persons. The court found that, while the defendants raised a number of arguments in support of their claim that the word “sex” does not encompass transgender persons, much of that case law came from cases interpreting Title VII, a different statute with a different legislative history and purpose. The court also found that there was case law supporting the plaintiff’s position, as
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well as the Department of Education’s “Dear Colleague” letter, which, the court found, should be accorded Auer deference.
The court also noted that the plaintiff had alleged sufficient facts to support a claim of gender stereotyping, alleging that the defendants had discriminated against him because he did not fit standard stereotypes of girls (the sex the school insists is his).
The court also found that the plaintiff had alleged sufficient facts to support his claims that the defendants had violated his equal protection rights. While the court did not, at the motion to dismiss stage, and does not now have to decide whether a rational basis or a heightened scrutiny standard of review applies to the plaintiff’s equal protection claim, at this point, the defendants have articulated little in the way of a rational basis for the alleged discrimination. The defendants argue that students have a right to privacy; the court is not clear how allowing the plaintiff to use the boys’ restroom violates other students’ right to privacy. The defendants argue that they have a right to set school policy, as long as it does not violate the law. The court agrees, but notes that the heart of this case is the question of whether the current (unwritten) policy violates the law. The defendants argue that allowing the plaintiff to use the boys’ restroom will gut the Department of Education regulation giving schools the discretion to segregate bathrooms by sex. The court noted at both the September 19 and September 20 hearings that it did not agree.
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Because of the low threshold showing a plaintiff must make regarding likelihood of success on the merits, see Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999), and because the plaintiff has articulated several bases upon which the court could rule in his favor, the court finds that the defendant has satisfied this element of the preliminary injunction test.
C. The Plaintiff Has Shown that He Has No Adequate Remedy at Law.
The court observed at the September 20 hearing that neither party focused much attention, either in the moving papers or at oral argument, on the question of whether the plaintiffs had an adequate remedy at law. The plaintiffs argued that plaintiff Ash Whitaker has only one senior year. They argued that even if, at the end of this lawsuit, the plaintiffs were to prevail, no recovery could give back to Ash the loss suffered if he spent his senior year focusing on avoiding using the restroom, rather than on his studies, his extracurricular activities and his college application process. The defendants made no argument that the plaintiffs have an adequate remedy at law. The court finds, therefore, that the plaintiffs have shown that they have no adequate remedy at law.
D. The Plaintiff Has Shown That He Will Suffer Irreparable Injury If The Court Does Not Enjoin The School’s Actions.
The parties focused most of their arguments on the element of irreparable harm. While alleged irreparable harm does not need to occur before a court may grant injunctive relief, there must be more than a mere possibility. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed.
10
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1303 (1953); Bath Indus., Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970). Put another way, the irreparable harm must be likely to occur if no injunction issues. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 21–23 (2008).
During the oral arguments, the plaintiff argued that the defendants’ denial of access to the boys’ restroom has caused and will continue to cause medical and psychological issues that his present and future health. In support of this argument, the plaintiff pointed to the declarations from Dr. Stephanie Budge and Dr. R. Nicholas Gorton, M.D., which explain gender dysphoria and discuss, both in terms specific to the plaintiff (Dr. Budge) and terms general to persons suffering from gender dysphoria (Dr. Gorton) the effects on persons with gender dysphoria of not being allowed to live in accordance with their gender identity. See Dkt. Nos. 10-2, 10-3. The defendants responded that the court should grant little weight or credibility to these affidavits, because Dr. Budge barely knew Ash Whitaker, Dr. Gorton did not know him at all, and neither affidavit quantified the harms they described.3
Relying primarily on the plaintiff’s declaration (which the defendants did not challenge at the hearing), dkt. no. 10-1, the court has no question that the plaintiff’s inability to use the boys’ restroom has caused him to suffer harm. The plaintiff’s declaration establishes that he has suffered emotional distress
3 While “[a]ffidavits are ordinarily inadmissible at trial . . . they are fully admissible in summary proceedings, including preliminary-injunction proceedings.” Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997)(citing Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).
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as a result of not being allowed to use the boys’ restrooms. While the school allows him to use the girls’ restrooms, his gender identity prevents him from doing so. He has refused to use the single-user bathrooms, due to distance from his classes and, more to the point, the embarrassment and stigma of being singled out and treated differently from all other students. Because the defendants do not allow him to use the boys’ restrooms, he has begun a practice of limiting his fluid intake, in an attempt to avoid having to use the restroom during the school day. Lack of hydration, however, exacerbates his problems with migraines, fainting and dizziness. He describes sleeplessness, fear of being disciplined (and having that impact his school record ahead of his efforts to get into college), and bouts of tearfulness and panic.
The plaintiff also attested to the fact that the emotional impact of his inability to use the restrooms like everyone else, and his being pulled out of class for discipline in connection with his restroom used, impacted on his ability to fully focus on his studies. The Seventh Circuit has recognized that discrimination that impacts one’s ability to focus and learn constitutes harm. See e.g., Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 853 (7th Cir. 1999).
To reiterate, the court finds that Ash has suffered harm. The defendants intimated in their arguments, however, that such harm was not irreparable, because the plaintiffs had not provided any evidence that the harm would be long-lasting, or permanent. It was in this context that the defendants challenged the professional declarations the plaintiffs had provided from
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experts in the field of gender dysphoria and gender transition. As the court stated at the September 20, 2016 hearing, however, the plaintiffs are not required to prove that Ash will be forever irreversibly damaged in order to prove irreparable harm. The Seventh Circuit has noted that irreparable harm is harm that “would [not] be rectifiable following trial.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of America, Inc., 549 F.3d 1079, 1088 (7th Cir. 2008). It has held that irreparable harm is “harm that cannot be prevented or fully rectified by the final judgment after trial.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir. 1984).
The plaintiff’s spending his last school year trying to avoid using the restroom, living in fear of being disciplined, feeling singled out and stigmatized, being subject to fainting spells or migraines, is not harm that can be rectified by a monetary judgment, or even an award of injunctive relief, after a trial that could take place months or years from now. The court finds that the plaintiffs have satisfied the irreparable harm factor.
E. The Plaintiff’s Irreparable Harm Outweighs Any Harm The Defendants Might Experience and the Effects Granting the Injunction Will Have on Nonparties.
The balancing of the harms weighs in the plaintiffs’ favor. The court has found that Ash Whitaker has suffered irreparable harm, and will continue to do so if he is not allowed to use the boys’ restrooms. The court must balance against that harm the possible harm to the defendants.
In their moving papers, the defendants argued that requiring them to allow Ash to use the boys’ restrooms would subject them to financial burdens
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and facility changes. They did not identify why allowing Ash to use the boys’ restrooms would create a financial burden; the court cannot, on the evidence before it, see what cost would be incurred in allowing Ash to use restrooms that already exist. The defendants provided no evidence regarding any facilities that they would have to build or provide.
The defendants also argued that a requirement that they allow Ash to use the boys’ restrooms would violate the privacy rights of other students. They provided no affidavits or other evidence in support of this argument. The evidence before the court indicates that Ash used the boys’ restroom for some seven months without incident or notice; the defendants prohibited him from using them only after a teach observed Ash in a boys’ restroom, washing his hands. This evidence contradicts the defendants’ assertions that allowing Ash to use the boys’ restroom would violate other students’ privacy rights.
The defendants argued that granting the injunctive relief would deny them the ability to exercise their discretion to segregate bathrooms by sex, as allowed by the regulations promulgated by the Department of Education. This argument is a red herring; the issuance of the injunction will not disturb the school’s ability to have boys’ restrooms and girls’ restrooms. It will require only that Ash, who identifies as a boy, be allowed to use the existing boys’ restrooms.
The defendants argued that the injunctive relief would require the defendants, in the first month of the new school year, to scramble to figure out policies and procedures to enable it to comply with the order of relief. This
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relief, however, does not require the defendants to create policies, or review policies. It requires only that the defendants allow Ash to use the boys’ restrooms, and not to subject him to discipline for doing so.
The court finds that the balance of harms weighs in favor of the plaintiff. F. Issuance of the Injunction Will Not Negatively Impact the
Public Interest. Finally, the court finds that issuance of the injunction will not harm the public interest. The defendants argue that granting the injunction will force schools all over the state of Wisconsin, and perhaps farther afield, to allow students who self-identify with a gender other than the one reflected anatomically at birth to use whatever restroom they wish. The defendants accord this court’s order breadth and power it does not possess. This order mandates only that the defendants allow one student—Ash Whitaker—to use the boys’ restrooms for the pendency of this litigation. The Kenosha Unified School District is the only institutional defendant in this case; the court’s order binds only that defendant. The defendants have provided no proof of any harm to third parties or to the public should the injunction issue. G. The Defendants’ Request for a Bond At the conclusion of the September 20, 2016 hearing, the defendants asked that if the court were inclined to grant injunctive relief, it require the plaintiffs to post a bond in the amount of $150,000. The defendants first cited Rule 65, and then cited the Wisconsin Supreme Court’s decision in Muscoda Bridge Co. v. Worden-Allen Co., 207 Wis. 22 (Wis. 1931). The defendants argued that, in the event that events revealed that this court had improvidently
15
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granted the injunction, the Muscoda case provided that the court should impose a bond sufficient to reimburse the defendants’ costs and attorneys’ fees, and counsel estimated that those fees could reach $150,000. The plaintiffs objected to the court requiring a bond, citing the plaintiffs’ limited means.
Rule 65(c) states that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The rule leaves to the court’s discretion the question of the proper amount of such a bond, and tethers that consideration to the amount of costs and damages sustained by the wrongfully enjoined party.
Counsel for the defendants argued that under Wisconsin law, “costs and damages” includes the legal fees the defendants would incur in, presumably, seeking to overturn the injunction, and argued that those fees could amount to as much as $150,000. In support of this argument, he cited Muscoda Bridge Co. v. Worden-Allen Co., 207 Wis. 22 (Wis. 1931), which held that “[i]t is the established law of this state that damages, sustained by reason of an injunction improvidently issued, properly include attorney fees for services rendered in procuring the dissolution of the injunction, and also for services upon the reference to ascertain damages.” Id. at 651. The problem with this argument is that Seventh Circuit law says otherwise.
[T]he Seventh Circuit has determined that, for purposes of Fed. R. Civ. P. 65(c), “costs and damages” damages do not include attorneys’ fees. Rather, in the absence of a statute authorizing
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such fees . . . an award of attorneys’ fees is only proper where the losing party is guilty of bad faith.” Minnesota Power & Light Co. v. Hockett, 14 Fed. App’x 703, 706 (7th Cir. 2001), quoting Coyne-Delany Co. v. Capital Dev. Bd. Of State of Ill., 717 F.2d 385, 390 (7th Cir. 1983)). See also, Int’l Broth. Of Teamsters Airline Div. v. Frontier Airlines, Inc., No. 10-C-0203, 2010 WL 2679959, at *5 (E.D. Wis. July 1, 2010). When there is a “direct collision” between a federal rule and a state law, the Seventh Circuit has mandated that federal law applies. Id. at 707. The defendants did not identify any statute authorizing an award of attorneys’ fees should they succeed in overturning the injunction. Thus, in order to determine the amount of a security bond under Rule 65(c), the court must consider the costs and damages the defendants are likely to face as a result of being improvidently enjoined, but not the legal costs they might incur in seeking to overturn the injunction. It is unclear what damages or costs the defendants will incur if they are wrongfully enjoined. As discussed above, the defendants have not demonstrated that it will cost them money to allow Ash to use the boys’ restrooms. Because it is within this court’s discretion to determine the amount of a security bond, and because the defendants have not demonstrated that they will suffer any financial damage as a result of being required to allow Ash to use the boys’ restrooms, the court will not require the plaintiffs to post security.
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IV. CONCLUSION For the reasons explained above, the court GRANTS IN PART the
plaintiff’s motion for a preliminary injunction. Dkt. No. 10. The court ORDERS that defendants Kenosha Unified School District and Sue Savaglio-Jarvis (in her capacity as superintendent of that district) are ENJOINED from
(1) denying Ash Whitaker access to the boys’ restrooms; (2) enforcing any policy, written or unwritten, against the plaintiff that would prevent him from using the boys restroom during any time he is on the school premises or attending school-sponsored events; (3) disciplining the plaintiff for using the boys restroom during any time that he is on the school premises or attending school-sponsored events; and (4) monitoring or surveilling in any way Ash Whitaker’s restroom use. The court DENIES the defendants’ request that the court require the plaintiffs to post a bond under Rule 65(c). Dated in Milwaukee, Wisconsin this 22nd day of September, 2016.
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________

ASHTON WHITAKER, By his mother and next friend, Melissa Whitaker,

Case No. 16-cv-943-pp

Plaintiff,

v.

KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS,

Defendants. ______________________________________________________________________________

ORDER DENYING DEFENDANTS’ CIVIL L.R. 7(h) EXPEDITED, NONDISPOSITIVE MOTION TO STAY PRELIMINARY INJUNCTION (DKT. NO. 33)
PENDING APPEAL (DKT. NO. 44) ______________________________________________________________________________

The plaintiff filed his complaint on July 19, 2016, Dkt. No. 1, and less

than a month later, filed a motion for preliminary injunction, Dkt. No. 10. A

day after the plaintiff filed the motion for preliminary injunction, the

defendants filed a motion to dismiss the complaint. Dkt. No. 15. A few days

later, they filed a brief in opposition to the motion for preliminary injunction.

Dkt. No. 17.

On September 6, 2016, the court heard oral argument on the motion to

dismiss. Dkt. No. 26. On September 19, 2016, the court issued an oral ruling

denying the defendants’ motion to dismiss. Dkt. No. 28. The court scheduled a

hearing on the motion for preliminary injunction for the following day,

September 20, 2016. Id. at 9.

1 Case 2:16-cv-00943-PP Filed 10/03/16 Page 1 of 5 Document 46

On September 20, 2016, the parties presented their oral arguments on
the motion for preliminary injunction. Dkt. No. 31. In considering the question
of whether the plaintiffs had a likelihood of success on the merits, the court
relied in good part on its decision from the previous day denying the motion to
dismiss.1 At the conclusion of the hearing, the court granted in part2 the
plaintiff’s motion for a preliminary injunction, and enjoined the defendants
from prohibiting the plaintiff from using the boys’ restrooms at his high school;
from taking punitive action against the plaintiff for using the boys’ restrooms;
and from taking any action to monitor his restroom usage. Dkt. No. 31 at 1.
Counsel for the defendants asked the court to stay the injunction until October
1 There is a bit of a procedural morass surrounding that decision. Counsel for the defendants informed the court at the end of the hearing that he would be submitting a proposed order, denying his motion to dismiss but containing the necessary findings for certification of an interlocutory appeal. He did not make any argument in support of that proposal; the court did not elicit any, nor did it ask for the plaintiff’s position. The court entered the order, with the interlocutory appeal certification language, on September 21. Dkt. No. 29. The next day, the plaintiff filed a motion asking the court to reconsider including the interlocutory appeal certification language. Dkt. No. 30. On September 23, 2016, before the court ruled on that motion, the defendants filed a notice of appeal with the Seventh Circuit, appealing both the order denying the motion to dismiss and the order granting the preliminary injunction (an order the court had issued on September 22, 2016, Dkt. No. 33). Dkt. No. 34. On September 25, 2016, the court issued an order granting the plaintiff’s motion to reconsider, Dkt. No. 36, and entered an amended order denying the motion to dismiss but removing the interlocutory appeal certification language, Dkt. No. 35. The next day, the Seventh Circuit ordered the plaintiff to respond to the defendants’ request for interlocutory appeal by October 11, 2016. 2 The plaintiff’s complaint requests other relief: it asks the court to prohibit the defendants from referring to the plaintiff by his birth name, and from using female pronouns to identify him; to require the school to allow him to room with other boys on school trips; to prohibit the school from requiring the plaintiff to wear identifying markers, such as a colored wristband; and other relief. The court did not grant injunctive relief on those requests—some were not ripe, and others speculated actions that had not yet occurred.
2
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1, 2016, to allow the defendants time to appeal. Id. The court declined. Id. at 2. The defendants also asked the court to require the plaintiff to post a bond; the court took that request under advisement. Id.
On September 22, 2016, the court issued its written order granting in part the motion for preliminary injunction. Dkt. No. 33. In particular, the court weighed the balance of harms, and concluded that the harms suffered by the plaintiff if the court did not grant the injunctive relief outweighed any potential harms suffered by the defendant if the court were to impose the injunction. Id. at 13-15. The court also found that the issuance of the injunction would not negatively impact the public interest. Id. at 15. Finally, the court declined to require the plaintiff to post a bond. Id. at 15-17.
The defendants again have asked the court to stay the preliminary injunction. Dkt. No. 44. The defendants point out that they have appealed the court’s decision to the Seventh Circuit (both appealed as of right regarding the order granting the motion for preliminary injunction, and sought interlocutory appeal regarding the court’s denial of the motion to dismiss the complaint). Id. at 2. They argue, as they did in their motion to dismiss, that the Seventh Circuit’s decision on Ulane v. Eastern Airlines, Inc., 742 F.2d 1081) (7th Circuit) mandates a ruling in their favor on the Title IX issue (despite conceding that the court has not decided the precise issue in question in this case). Id. at 1-2. They argue that they will suffer irreparable harm from the injunction, because the injunction “threatens the constitutionally protected privacy interest of the approximately 22,000 students in the school district.” Id. at 2-3.
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They argue that the plaintiff will not be harmed by staying the injunction, because a stay would maintain the status quo and would not worsen the plaintiff’s health. Id. at 3. Finally, they argue that the public interest would be served by a stay of the injunction, because it will prevent the school district’s students and parents from being “subjected to an injunction that perpetuates a policy that the federal government is unable to enforce,” citing State of Texas v. United States, Case No. 16-cv-54, 2016 WL 4426495 (N.D. Tex., August 21, 2016).3
As the defendants state in their motion, the factors a movant must satisfy to obtain a stay pending appeal are similar to the factors a movant must satisfy to obtain injunction relief. Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The moving party must demonstrate that “1) it has a reasonable likelihood of success on the merits; 2) no adequate remedy at law exists; 3) it will suffer irreparable harm if it is denied; 4) the irreparable harm the party will suffer without relief is greater than the harm the opposing party will suffer if the stay is granted; and 5) the stay will be in the public interest.” Id. (citing Kiel v. City of Kenosha, 236 F.3d 814, 815-16 (7th Cir. 2000)).
3 The defendants’ statement that Texas district court’s injunction prohibits the federal government from enforcing its policies at all is overbroad. The Texas court’s order prohibits the federal government from enforcing certain Department of Education policies (relevant to this case) against the plaintiffs in that case “until the Court rules on the merits of this claim, or until further direction from the Fifth Circuit Court of Appeals.” Texas v. United States, 2016 WL 4426495 at 17.
4
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Every argument which the defendants raise in their motion for stay pending appeal was raised in their objection to the motion for preliminary injunction, and the parties argued every one of those issues at the September 20, 2016 hearing. The court found in favor of the plaintiff, and against the defendants, on each factor. The defendants give no explanation for why the court should find in their favor now, when eight days prior to their filing this motion to stay, the court found against them on exactly the same issues they raise here.
The court DENIES the defendants’ motion Civil L.R. 7(h) Expedited, NonDispositive Motion to Stay Preliminary Injunction. Dkt. No. 44.
Dated in Milwaukee, Wisconsin this 3rd day of October, 2016.
5 Case 2:16-cv-00943-PP Filed 10/03/16 Page 5 of 5 Document 46

 
 Case: 16-3522 Document: 00713017988

Filed: 06/21/2017 Pages: 35 (1 of 39)





In the
United States Court of Appeals

No.ȱ16Ȭ3522ȱ

For the Seventh Circuit
____________________ȱ

ASHTONȱWHITAKER,ȱBYȱHISȱMOTHERȱANDȱNEXTȱFRIENDȱMELISSAȱ

WHITAKER,ȱ

ȱ

ȱ

ȱ

PlaintiffȬAppellee,ȱ

v.ȱ

KENOSHAȱUNIFIEDȱSCHOOLȱDISTRICTȱ NO.ȱ1ȱBOARDȱOFȱEDUCATION,ȱetȱal.,ȱ

DefendantsȬAppellantsȱ

____________________ȱ

AppealȱfromȱtheȱUnitedȱStatesȱDistrictȱCourtȱforȱtheȱ EasternȱDistrictȱofȱWisconsin.ȱ
No.ȱ2:16ȬcvȬ00943ȬPPȱ—ȱPamelaȱPepper,ȱJudge.ȱ
____________________ȱ

ARGUEDȱMARCHȱ29,ȱ2017ȱ—ȱDECIDEDȱMAYȱ30,ȱ2017ȱ ____________________ȱ

BeforeȱWOOD,ȱChiefȱJudge,ȱandȱROVNERȱandȱWILLIAMS,ȱCirȬ cuitȱJudges.ȱ
WILLIAMS,ȱ Circuitȱ Judge.ȱ Ashtonȱ (“Ash”)ȱ Whitakerȱ isȱ aȱ 17ȱ yearȬoldȱhighȱschoolȱseniorȱwhoȱhasȱwhatȱwouldȱseemȱlikeȱaȱ simpleȱ request:ȱ toȱ useȱ theȱ boys’ȱ restroomȱ whileȱ atȱ school.ȱ

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However,ȱ theȱ Defendants,ȱ theȱ Kenoshaȱ Unifiedȱ Schoolȱ DisȬ trictȱ andȱ itsȱ superintendent,ȱ Sueȱ Savaglio,ȱ (theȱ “Schoolȱ DisȬ trict”)ȱbelieveȱthatȱtheȱrequestȱisȱnotȱsoȱsimpleȱbecauseȱAsh1ȱisȱ aȱtransgenderȱboy.ȱTheȱSchoolȱDistrictȱdidȱnotȱpermitȱAshȱtoȱ enterȱ theȱ boys’ȱ restroomȱ because,ȱ itȱ believed,ȱ thatȱ hisȱ mereȱ presenceȱ wouldȱ invadeȱ theȱ privacyȱ rightsȱ ofȱ hisȱ maleȱ classȬ mates.ȱAshȱbroughtȱsuit,ȱallegingȱthatȱtheȱSchoolȱDistrict’sȱunȬ writtenȱ bathroomȱ policy2ȱ violatesȱ Titleȱ IXȱ ofȱ theȱ Educationȱ Amendmentsȱ Actȱ ofȱ 1972ȱ andȱ theȱ Fourteenthȱ Amendment’sȱ EqualȱProtectionȱClause.ȱȱ
Inȱ additionȱ toȱ filingȱ suit,ȱ Ash,ȱ beginningȱ hisȱ seniorȱ year,ȱ movedȱ forȱ preliminaryȱ injunctiveȱ relief,ȱ seekingȱ anȱ orderȱ grantingȱhimȱaccessȱtoȱtheȱboys’ȱrestrooms.ȱHeȱassertedȱthatȱ theȱdenialȱ ofȱaccessȱ toȱtheȱboys’ȱbathroomȱwasȱcausingȱ himȱ harm,ȱ asȱ hisȱ attemptsȱ toȱ avoidȱ usingȱ theȱ bathroomȱ exacerȬ batedȱ hisȱ vasovagalȱ syncope,ȱ aȱ conditionȱ thatȱ rendersȱ Ashȱ susceptibleȱtoȱfaintingȱand/orȱseizuresȱifȱdehydrated.ȱHeȱalsoȱ contendedȱ thatȱ theȱ denialȱ causedȱ himȱ educationalȱ andȱ emoȬ tionalȱharm,ȱincludingȱsuicidalȱideations.ȱTheȱSchoolȱDistrictȱ vigorouslyȱobjectedȱandȱmovedȱtoȱdismissȱAsh’sȱclaims,ȱarguȬ ingȱthatȱAshȱcouldȱneitherȱstateȱaȱclaimȱunderȱTitleȱIXȱnorȱtheȱ EqualȱProtectionȱClause.ȱTheȱdistrictȱcourtȱdeniedȱtheȱmotionȱ toȱdismissȱandȱgrantedȱAsh’sȱpreliminaryȱinjunctionȱmotion.ȱȱ
Onȱappeal,ȱtheȱSchoolȱDistrictȱarguesȱthatȱweȱshouldȱexerȬ ciseȱ pendentȱ appellateȱ jurisdictionȱ toȱ reviewȱ theȱ districtȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
1 Weȱ willȱ referȱ toȱ theȱ PlaintiffȬAppelleeȱ asȱ “Ash,”ȱ ratherȱ thanȱ byȱ hisȱ lastȱname,ȱasȱthisȱisȱhowȱheȱrefersȱtoȱhimselfȱthroughoutȱhisȱbrief.ȱȱ
2WeȱwillȱreferȱtoȱtheȱSchoolȱDistrict’sȱdecisionȱtoȱdenyȱAshȱaccessȱtoȱ theȱboys’ȱrestroomȱasȱaȱ“policy,”ȱalthoughȱanyȱsuchȱ“policy”ȱisȱunwrittenȱ andȱitsȱexactȱboundariesȱareȱunclear.

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court’sȱdecisionȱtoȱdenyȱtheȱmotionȱtoȱdismiss.ȱHowever,ȱweȱ declineȱthisȱinvitation,ȱasȱtheȱtwoȱordersȱwereȱnotȱinextricablyȱ intertwinedȱ andȱ weȱ canȱ reviewȱ theȱ grantȱ ofȱ theȱ preliminaryȱ injunctionȱwithoutȱreviewingȱtheȱdenialȱofȱtheȱmotionȱtoȱdisȬ miss.ȱ

TheȱSchoolȱDistrictȱalsoȱarguesȱthatȱweȱshouldȱreverseȱtheȱ districtȱcourt’sȱdecisionȱtoȱgrantȱtheȱpreliminaryȱinjunctionȱforȱ twoȱmainȱreasons.ȱFirst,ȱitȱarguesȱthatȱtheȱdistrictȱcourtȱerredȱ inȱfindingȱthatȱAshȱhadȱdemonstratedȱaȱlikelihoodȱofȱsuccessȱ onȱtheȱmeritsȱbecauseȱtransgenderȱstatusȱisȱneitherȱaȱprotectedȱ classȱ underȱ Titleȱ IXȱ norȱ isȱ itȱ entitledȱ toȱ heightenedȱ scrutiny.ȱ And,ȱbecauseȱtheȱSchoolȱDistrict’sȱpolicyȱhasȱaȱrationalȱbasis,ȱ thatȱ is,ȱ theȱ needȱ toȱ protectȱ otherȱ students’ȱ privacy,ȱ Ash’sȱ claimsȱ failȱ asȱ aȱ matterȱ ofȱ law.ȱ Weȱ rejectȱ theseȱ argumentsȱ beȬ causeȱAshȱhasȱsufficientlyȱdemonstratedȱaȱlikelihoodȱofȱsucȬ cessȱonȱhisȱTitleȱIXȱclaimȱunderȱaȱsexȬstereotypingȱtheory.ȱFurȬ ther,ȱbecauseȱtheȱpolicy’sȱclassificationȱisȱbasedȱuponȱsex,ȱheȱ hasȱ alsoȱ demonstratedȱ thatȱ heightenedȱ scrutiny,ȱ andȱ notȱ raȬ tionalȱbasis,ȱshouldȱapplyȱtoȱhisȱEqualȱProtectionȱClaim.ȱTheȱ Schoolȱ Districtȱ hasȱ notȱ providedȱ aȱ genuineȱ andȱ exceedinglyȱ persuasiveȱjustificationȱforȱtheȱclassification.ȱ

Second,ȱ theȱ Schoolȱ Districtȱ arguesȱ thatȱ theȱ districtȱ courtȱ

erredȱinȱfindingȱthatȱtheȱharmsȱtoȱAshȱoutweighedȱtheȱharmsȱ

toȱtheȱstudentȱpopulationȱandȱtheirȱprivacyȱinterests.ȱWeȱdisȬ

agree.ȱTheȱSchoolȱDistrictȱhasȱfailedȱtoȱprovideȱanyȱevidenceȱ

ofȱ howȱ theȱ preliminaryȱ injunctionȱ willȱ harmȱ it,ȱ orȱ anyȱ ofȱ itsȱ

studentsȱorȱparents.ȱTheȱharmsȱidentifiedȱbyȱtheȱSchoolȱDisȬ

trictȱ areȱ allȱ speculativeȱ andȱ basedȱ uponȱ conjecture,ȱ whereasȱ

theȱharmsȱtoȱAshȱareȱwellȬdocumentedȱandȱsupportedȱbyȱtheȱ

record.ȱAsȱaȱconsequence,ȱweȱaffirmȱtheȱgrantȱofȱpreliminaryȱ

injunctiveȱrelief.ȱ

ȱ

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I.ȱBACKGROUNDȱ
AshȱWhitakerȱisȱaȱ17ȱyearȬoldȱwhoȱlivesȱinȱKenosha,ȱWisȬ consinȱ withȱ hisȱ mother,ȱ whoȱ broughtȱ thisȱ suitȱ asȱ hisȱ “nextȱ friend.”3ȱ Heȱ isȱ currentlyȱ aȱ seniorȱ atȱ Georgeȱ Nelsonȱ Tremperȱ HighȱSchool,ȱwhichȱisȱinȱtheȱKenoshaȱUnifiedȱSchoolȱDistrict.ȱ Heȱenteredȱhisȱseniorȱyearȱrankedȱwithinȱtheȱtopȱfiveȱpercentȱ ofȱhisȱclassȱandȱisȱinvolvedȱinȱaȱnumberȱofȱextracurricularȱacȬ tivitiesȱ includingȱ theȱ orchestra,ȱ theater,ȱ tennis,ȱ theȱ Nationalȱ HonorȱSociety,ȱandȱtheȱAstronomicalȱSociety.ȱWhenȱnotȱinȱosȬ choolȱorȱparticipatingȱinȱtheseȱactivities,ȱAshȱworksȱpartȬtimeȱ asȱanȱaccountingȱassistantȱinȱaȱmedicalȱoffice.ȱȱ
Whileȱ Ash’sȱ birthȱ certificateȱ designatesȱ himȱ asȱ “female,”ȱ heȱdoesȱnotȱidentifyȱasȱone.ȱRather,ȱinȱtheȱspringȱofȱ2013,ȱwhenȱ Ashȱ wasȱ inȱ eighthȱ grade,ȱ heȱ toldȱ hisȱ parentsȱ thatȱ heȱ isȱ transgenderȱandȱaȱboy.ȱHeȱbeganȱtoȱopenlyȱidentifyȱasȱaȱboyȱ duringȱtheȱ2013Ȭ2014ȱschoolȱyear,ȱwhenȱheȱenteredȱTremperȱ asȱaȱfreshman.ȱHeȱcutȱhisȱhair,ȱbeganȱtoȱwearȱmoreȱmasculineȱ clothing,ȱ andȱ beganȱ toȱ useȱ theȱ nameȱ Ashtonȱ andȱ maleȱ proȬ nouns.ȱ Inȱ theȱ fallȱ ofȱ 2014,ȱ theȱ beginningȱ ofȱ hisȱ sophomoreȱ year,ȱheȱtoldȱhisȱteachersȱandȱhisȱclassmatesȱthatȱheȱisȱaȱboyȱ andȱaskedȱthemȱtoȱreferȱtoȱhimȱasȱAshtonȱorȱAshȱandȱtoȱuseȱ maleȱpronouns.ȱȱ
Inȱadditionȱtoȱ publiclyȱtransitioning,ȱAshȱ beganȱtoȱseeȱaȱ therapist,ȱwhoȱdiagnosedȱhimȱwithȱGenderȱDysphoria,ȱwhichȱ theȱ Americanȱ Psychiatricȱ Associationȱ definesȱ asȱ “aȱ markedȱ incongruenceȱ betweenȱ one’sȱ experienced/expressedȱ genderȱ

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
3 Becauseȱ Ashȱ isȱ aȱ minorȱ withoutȱ aȱ dulyȱ appointedȱ representative,ȱ pursuantȱtoȱRuleȱ17ȱofȱtheȱFederalȱRulesȱofȱCivilȱProcedure,ȱheȱmayȱassertȱ theseȱclaimsȱonlyȱthroughȱaȱ“nextȱfriend”ȱorȱguardianȱadȱlitem.

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andȱassignedȱgenderȱ…ȱ.”4ȱAm.ȱPsychiatricȱAss’n,ȱDiagnosticȱ&ȱ StatisticalȱManualȱofȱMentalȱDisordersȱ452ȱ(5thȱed.ȱ2013).ȱInȱJulyȱ 2016,ȱ underȱ theȱ supervisionȱ ofȱ anȱ endocrinologistȱ atȱ ChilȬ dren’sȱ Hospitalȱ ofȱ Wisconsin,ȱ Ashȱ beganȱ hormoneȱ replaceȬ mentȱ therapy.ȱ Aȱ monthȱ later,ȱ heȱ filedȱ aȱ petitionȱ toȱ legallyȱ changeȱhisȱnameȱtoȱAshtonȱWhitaker,ȱwhichȱwasȱgrantedȱinȱ Septemberȱ2016.ȱ
Forȱtheȱmostȱpart,ȱAsh’sȱtransitionȱhasȱbeenȱmetȱwithoutȱ hostilityȱandȱhasȱbeenȱacceptedȱbyȱmuchȱofȱtheȱTremperȱcomȬ munity.ȱAtȱanȱorchestraȱperformanceȱinȱJanuaryȱ2015,ȱforȱexȬ ample,ȱheȱworeȱaȱtuxedoȱlikeȱtheȱrestȱofȱtheȱboysȱinȱtheȱgroup.ȱ Hisȱorchestraȱteacher,ȱclassmates,ȱandȱtheȱaudienceȱacceptedȱ thisȱ withoutȱ incident.ȱ Unfortunately,ȱ theȱ Schoolȱ Districtȱ hasȱ notȱ beenȱ asȱ acceptingȱ ofȱ Ash’sȱ requestsȱ toȱ useȱ theȱ boys’ȱ reȬ strooms.ȱ
Inȱtheȱspringȱofȱhisȱsophomoreȱyear,ȱAshȱandȱhisȱmotherȱ metȱ withȱ hisȱ guidanceȱ counselorȱ onȱ severalȱ occasionsȱ toȱ reȬ questȱthatȱAshȱbeȱpermittedȱtoȱuseȱtheȱboys’ȱrestroomsȱwhileȱ atȱschoolȱandȱatȱschoolȬsponsoredȱevents.ȱAshȱwasȱlaterȱnotiȬ fiedȱthatȱ theȱ administrationȱhadȱ decidedȱ thatȱheȱcouldȱonlyȱ useȱtheȱgirls’ȱrestroomsȱorȱaȱgenderȬneutralȱrestroomȱthatȱwasȱ inȱ theȱ school’sȱ mainȱ office,ȱ whichȱ wasȱ quiteȱ aȱ distanceȱ fromȱ hisȱclassrooms.ȱBecauseȱAshȱhadȱpubliclyȱtransitioned,ȱheȱbeȬ lievedȱ thatȱ usingȱ theȱ girls’ȱ restroomsȱ wouldȱ undermineȱ hisȱ transition.ȱAdditionally,ȱsinceȱAshȱwasȱtheȱonlyȱstudentȱwhoȱ wasȱ permittedȱ toȱ useȱ theȱ genderȬneutralȱ bathroomȱ inȱ theȱ school’sȱoffice,ȱheȱfearedȱthatȱusingȱitȱwouldȱdrawȱfurtherȱatȬ tentionȱtoȱhisȱtransitionȱandȱstatusȱasȱaȱtransgenderȱstudentȱatȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
4WeȱtakeȱjudicialȱnoticeȱofȱtheȱDiagnosticȱandȱStatisticalȱManualȱpurȬ suantȱtoȱRuleȱ201ȱofȱtheȱFederalȱRulesȱofȱEvidence.

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Tremper.ȱAsȱaȱhighȱschooler,ȱAshȱalsoȱworriedȱthatȱheȱmightȱ beȱdisciplinedȱifȱheȱtriedȱtoȱuseȱtheȱboys’ȱrestroomsȱandȱthatȱ suchȱdisciplineȱmightȱhurtȱhisȱchancesȱofȱgettingȱintoȱcollege.ȱ Forȱ theseȱ reasons,ȱ Ashȱ restrictedȱ hisȱ waterȱ intakeȱ andȱ atȬ temptedȱtoȱavoidȱusingȱanyȱrestroomȱatȱschoolȱforȱtheȱrestȱofȱ theȱschoolȱyear.ȱȱ
RestrictingȱhisȱwaterȱintakeȱwasȱproblematicȱforȱAsh,ȱwhoȱ hasȱ beenȱ diagnosedȱ withȱ vasovagalȱ syncope.ȱ Thisȱ conditionȱ rendersȱAshȱmoreȱsusceptibleȱtoȱfaintingȱand/orȱseizuresȱifȱdeȬ hydrated.ȱToȱavoidȱtriggeringȱtheȱcondition,ȱAsh’sȱphysiciansȱ haveȱadvisedȱhimȱtoȱdrinkȱsixȱtoȱsevenȱbottlesȱofȱwaterȱandȱaȱ bottleȱofȱGatoradeȱdaily.ȱBecauseȱAshȱrestrictedȱhisȱwaterȱinȬ takeȱtoȱensureȱthatȱheȱdidȱnotȱhaveȱtoȱutilizeȱtheȱrestroomȱatȱ school,ȱheȱsufferedȱfromȱsymptomsȱofȱhisȱvasovagalȱsyncope,ȱ includingȱfaintingȱandȱdizziness.ȱHeȱalsoȱsufferedȱfromȱstressȬ relatedȱmigraines,ȱdepression,ȱandȱanxietyȱbecauseȱofȱtheȱpolȬ icy’sȱimpactȱonȱhisȱtransitionȱandȱwhatȱheȱperceivedȱtoȱbeȱtheȱ impossibleȱ choiceȱ betweenȱ livingȱ asȱ aȱ boyȱ orȱ usingȱ theȱ reȬ stroom.ȱHeȱevenȱbeganȱtoȱcontemplateȱsuicide.ȱ
Inȱtheȱfallȱofȱ2015,ȱAshȱbeganȱhisȱjuniorȱyearȱatȱTremper.ȱ Forȱ sixȱ months,ȱ heȱ exclusivelyȱ usedȱ theȱ boys’ȱ restroomsȱ atȱ schoolȱwithoutȱincident.ȱBut,ȱinȱFebruaryȱ2016,ȱaȱteacherȱsawȱ himȱ washingȱ hisȱ handsȱ atȱ aȱ sinkȱ inȱ theȱ boys’ȱ restroomȱ andȱ reportedȱitȱtoȱtheȱschool’sȱadministration.ȱInȱresponse,ȱAsh’sȱ guidanceȱcounselor,ȱDebraȱTronvig,ȱagainȱtoldȱAsh’sȱmotherȱ thatȱheȱwasȱpermittedȱtoȱonlyȱuseȱtheȱgirls’ȱrestroomsȱorȱtheȱ genderȬneutralȱbathroomȱinȱtheȱschool’sȱmainȱoffice.ȱTheȱnextȱ month,ȱ Ashȱ andȱ hisȱ motherȱ metȱ withȱ Assistantȱ Principalȱ HollyȱGrafȱtoȱdiscussȱtheȱschool’sȱpolicy.ȱLikeȱbefore,ȱMs.ȱGrafȱ statedȱthatȱAshȱwasȱnotȱpermittedȱtoȱuseȱtheȱboys’ȱrestrooms.ȱ However,ȱtheȱreasonȱsheȱgaveȱthisȱtimeȱwasȱthatȱheȱwasȱlistedȱ

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asȱaȱfemaleȱinȱtheȱschool’sȱofficialȱrecordsȱandȱtoȱchangeȱthoseȱ records,ȱtheȱschoolȱneededȱunspecifiedȱ“legalȱorȱmedicalȱdocȬ umentation.”ȱȱ
Twoȱ lettersȱ submittedȱ byȱ Ash’sȱ pediatrician,ȱ identifyingȱ himȱasȱaȱtransgenderȱboyȱandȱrecommendingȱthatȱheȱ beȱalȬ lowedȱ toȱ useȱ maleȬdesignatedȱ facilitiesȱ atȱ schoolȱ wereȱ deemedȱ notȱ sufficientȱ toȱ changeȱ hisȱ designation.ȱ Rather,ȱ theȱ schoolȱmaintainedȱthatȱAshȱwouldȱhaveȱtoȱcompleteȱaȱsurgiȬ calȱ transitionȱ …ȱ aȱ procedureȱ thatȱ isȱ prohibitedȱ forȱ someoneȱ underȱ 18ȱ yearsȱ ofȱ ageȱ …ȱ toȱ beȱ permittedȱ accessȱ toȱ theȱ boys’ȱ restroom.ȱ Further,ȱ notȱ allȱ transgenderȱ personsȱ optȱ toȱ comȬ pleteȱ aȱ surgicalȱ transition,ȱ preferringȱ toȱ forgoȱ theȱ significantȱ risksȱandȱcostsȱthatȱaccompanyȱsuchȱprocedures.ȱTheȱSchoolȱ DistrictȱdidȱnotȱgiveȱanyȱexplanationȱasȱtoȱwhyȱaȱsurgicalȱtranȬ sitionȱ wasȱ necessary.ȱ Indeed,ȱ theȱ verbalȱ statementsȱ madeȱ toȱ Ash’sȱmomȱaboutȱtheȱpolicyȱhaveȱneverȱbeenȱreducedȱtoȱwritȬ ing.ȱInȱfact,ȱtheȱSchoolȱDistrictȱhasȱneverȱprovidedȱanyȱwrittenȱ documentȱthatȱdetailsȱwhenȱtheȱpolicyȱwentȱintoȱeffect,ȱwhatȱ theȱpolicyȱis,ȱorȱhowȱoneȱcanȱchangeȱhisȱstatusȱunderȱtheȱpolȬ icy.ȱȱ
FearingȱthatȱusingȱtheȱoneȱgenderȬneutralȱrestroomȱwouldȱ singleȱhimȱoutȱandȱsubjectȱhimȱtoȱscrutinyȱfromȱhisȱclassmatesȱ andȱknowingȱthatȱusingȱtheȱgirls’ȱrestroomȱwouldȱbeȱinȱconȬ tradictionȱtoȱhisȱtransition,ȱAshȱcontinuedȱtoȱuseȱtheȱboys’ȱreȬ stroomȱforȱtheȱremainderȱofȱhisȱjuniorȱyear.ȱȱ
Thisȱ decisionȱ wasȱ notȱ withoutȱ aȱ cost.ȱ Ashȱ experiencedȱ feelingsȱofȱanxiousnessȱandȱdepression.ȱHeȱonceȱmoreȱbeganȱ toȱ contemplateȱ suicide.ȱ Nonetheless,ȱ theȱ school’sȱ securityȱ guardsȱwereȱinstructedȱtoȱmonitor’sȱAsh’sȱrestroomȱuseȱtoȱenȬ sureȱthatȱheȱusedȱtheȱproperȱfacilities.ȱBecauseȱAshȱcontinuedȱ

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toȱuseȱtheȱboys’ȱrestroom,ȱheȱwasȱremovedȱfromȱclassȱonȱsevȬ eralȱoccasionsȱtoȱdiscussȱhisȱviolationȱofȱtheȱschool’sȱunwritȬ tenȱpolicy.ȱHisȱclassmatesȱandȱteachersȱoftenȱaskedȱhimȱaboutȱ theseȱ meetingsȱ andȱ whyȱ administratorsȱ wereȱ removingȱ himȱ fromȱclass.ȱ

Inȱ Aprilȱ 2016,ȱ theȱ Schoolȱ Districtȱ providedȱ Ashȱ withȱ theȱ additionalȱoptionȱofȱusingȱtwoȱsingleȬuser,ȱgenderȬneutralȱreȬ strooms.ȱTheseȱlockedȱrestroomsȱwereȱonȱtheȱoppositeȱsideȱofȱ campusȱfromȱwhereȱhisȱclassesȱwereȱheld.ȱTheȱSchoolȱDistrictȱ providedȱ onlyȱ oneȱ studentȱ withȱ theȱ key:ȱ Ash.ȱ Sinceȱ theȱ reȬ stroomsȱ wereȱ notȱ nearȱ hisȱ classrooms,ȱ whichȱ causedȱ Ashȱ toȱ missȱclassȱtime,ȱandȱbecauseȱusingȱthemȱfurtherȱstigmatizedȱ him,ȱAshȱagainȱavoidedȱusingȱtheȱbathroomsȱwhileȱatȱschool.ȱ Thisȱonlyȱexacerbatedȱhisȱsyncopeȱandȱmigraines.ȱInȱaddition,ȱ Ashȱbeganȱtoȱfearȱforȱhisȱsafetyȱasȱmoreȱattentionȱwasȱdrawnȱ toȱhisȱrestroomȱuseȱandȱtransgenderȱstatus.ȱȱ

Althoughȱnotȱpartȱofȱthisȱappeal,ȱAshȱcontendsȱthatȱheȱhasȱ alsoȱ beenȱ subjectedȱ toȱ otherȱ negativeȱ actionsȱ byȱ theȱ Schoolȱ District,ȱincludingȱinitiallyȱprohibitingȱhimȱfromȱrunningȱforȱ promȱking,ȱreferringȱtoȱhimȱwithȱfemaleȱpronouns,ȱusingȱhisȱ birthȱname,ȱandȱrequiringȱhimȱtoȱroomȱwithȱfemaleȱstudentsȱ orȱaloneȱonȱschoolȬsponsoredȱtrips.ȱFurthermore,ȱAshȱlearnedȱ inȱ Mayȱ 2016ȱ thatȱ schoolȱ administratorsȱ hadȱ consideredȱ inȬ structingȱ itsȱ guidanceȱ counselorsȱ toȱ distributeȱ brightȱ greenȱ wristbandsȱ toȱ Ashȱ andȱ otherȱ transgenderȱ studentsȱ soȱ thatȱ theirȱ bathroomȱ usageȱ couldȱ beȱ monitoredȱ moreȱ easily.ȱ Throughoutȱthisȱlitigation,ȱtheȱSchoolȱDistrictȱhasȱdeniedȱthatȱ itȱconsideredȱimplementingȱtheȱwristbandȱplan.ȱȱ

ȱ

ȱ

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A. ProceedingsȱBelowȱ
Inȱtheȱspringȱofȱ2016,ȱAshȱengagedȱcounselȱwho,ȱinȱAprilȱ 2016,ȱsentȱtheȱSchoolȱDistrictȱaȱletterȱdemandingȱthatȱitȱpermitȱ himȱ toȱ useȱ theȱ boys’ȱ restroomȱ whileȱ atȱ schoolȱ andȱ duringȱ schoolȬsponsoredȱ events.ȱ Inȱ response,ȱ theȱ Schoolȱ Districtȱ reȬ peatedȱitsȱpolicyȱthatȱAshȱwasȱrequiredȱtoȱuseȱeitherȱtheȱgirls’ȱ restroomȱ orȱ theȱ genderȬneutralȱ facilities.ȱ Onȱ Mayȱ 12,ȱ 2016,ȱ AshȱfiledȱanȱadministrativeȱcomplaintȱwithȱtheȱUnitedȱStatesȱ Departmentȱ ofȱ Education’sȱ Officeȱ forȱ Civilȱ Rights,ȱ allegingȱ thatȱ thisȱ policyȱ violatedȱ hisȱ rightsȱ underȱ Titleȱ IX.ȱ Toȱ pursueȱ theȱ instantȱ litigation,ȱ Ashȱ choseȱ toȱ withdrawȱ theȱ complaintȱ withoutȱprejudice.ȱ
OnȱJulyȱ16,ȱ2016,ȱAshȱcommencedȱthisȱactionȱandȱonȱAuȬ gustȱ 15,ȱ heȱ filedȱ anȱ Amendedȱ Complaintȱ allegingȱ thatȱ theȱ treatmentȱheȱreceivedȱatȱTremperȱHighȱSchoolȱviolatedȱTitleȱ IX,ȱ20ȱU.S.C.ȱ§1681,ȱetȱseq.,ȱandȱtheȱEqualȱProtectionȱClauseȱofȱ theȱFourteenthȱAmendment.ȱThatȱsameȱday,ȱAsh,ȱinȱaȱmotionȱ forȱpreliminaryȱinjunction,ȱsoughtȱtoȱenjoinȱtheȱenforcementȱ ofȱtheȱSchoolȱDistrict’sȱpolicyȱpendingȱtheȱoutcomeȱofȱtheȱlitȬ igation.ȱTheȱnextȱday,ȱtheȱSchoolȱDistrictȱfiledȱaȱmotionȱtoȱdisȬ missȱ andȱ filedȱ itsȱ oppositionȱ toȱ theȱ preliminaryȱ injunctionȱ shortlyȱthereafter.ȱȱ
Afterȱaȱhearingȱonȱtheȱmotionȱtoȱdismiss,ȱtheȱdistrictȱcourtȱ deniedȱtheȱmotion.ȱTheȱnextȱday,ȱitȱheardȱoralȱargumentsȱonȱ Ash’sȱmotionȱforȱpreliminaryȱinjunction.ȱAȱfewȱdaysȱlater,ȱtheȱ districtȱ courtȱ grantedȱ theȱ motionȱ inȱ partȱ andȱ enjoinedȱ theȱ Schoolȱ Districtȱ from:ȱ (1)ȱ denyingȱ Ashȱ accessȱ toȱ theȱ boys’ȱ reȬ stroom;ȱ(2)ȱenforcingȱanyȱwrittenȱorȱunwrittenȱpolicyȱagainstȱ Ashȱ thatȱ wouldȱ preventȱ himȱ fromȱ usingȱ theȱ boys’ȱ restroomȱ whileȱ onȱ schoolȱ propertyȱ orȱ attendingȱ schoolȬsponsoredȱ events;ȱ(3)ȱdiscipliningȱAshȱforȱusingȱtheȱboys’ȱrestroomȱwhileȱ

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onȱschoolȱpropertyȱorȱattendingȱschoolȬsponsoredȱevents;ȱandȱ (4)ȱmonitoringȱorȱsurveillingȱAsh’sȱrestroomȱuseȱinȱanyȱway.ȱ Thisȱappealȱfollowed.ȱ

Inȱ aȱ separateȱ appeal,ȱ theȱ Schoolȱ Districtȱ petitionedȱ thisȱ courtȱforȱpermissionȱtoȱfileȱanȱinterlocutoryȱappealȱofȱtheȱdisȬ trictȱcourt’sȱdenialȱofȱitsȱmotionȱtoȱdismiss.ȱAlthoughȱinitiallyȱ theȱdistrictȱcourtȱcertifiedȱtheȱorderȱdenyingȱtheȱmotionȱtoȱdisȬ missȱforȱimmediateȱinterlocutoryȱappealȱpursuantȱtoȱ28ȱU.S.C.ȱ §ȱ1292(b),ȱitȱrevokedȱthatȱcertificationȱwhenȱitȱconcludedȱthatȱ itȱhadȱerredȱbyȱincludingȱtheȱcertificationȱlanguageȱinȱitsȱiniȬ tialȱorder.ȱTherefore,ȱweȱdeniedȱtheȱSchoolȱDistrict’sȱpetitionȱ forȱ interlocutoryȱ reviewȱ ofȱ theȱ motionȱ toȱ dismissȱ forȱ lackȱ ofȱ jurisdiction.ȱSeeȱKenoshaȱUnifiedȱSch.ȱDist.ȱNo.ȱ1ȱBd.ȱofȱEduc.ȱv.ȱ Whitaker,ȱ 841ȱ F.3dȱ 730,ȱ 731–32ȱ (7thȱ Cir.ȱ 2016).ȱ Inȱ theȱ alternaȬ tive,ȱ theȱ Schoolȱ Districtȱ urgedȱ thisȱ courtȱ toȱ exerciseȱ pendentȱ jurisdictionȱoverȱtheȱorderȱdenyingȱtheȱmotionȱtoȱdismissȱbeȬ causeȱtheȱdistrictȱcourtȱhadȱpartiallyȱgrantedȱtheȱpreliminaryȱ injunction.ȱButȱsinceȱweȱlackedȱjurisdictionȱtoȱconsiderȱtheȱpeȬ titionȱforȱinterlocutoryȱappeal,ȱweȱalsoȱlackedȱaȱproperȱjurisȬ dictionalȱ basisȱ forȱ extendingȱ pendentȱ jurisdiction.ȱ Id.ȱ atȱ 732.ȱ Therefore,ȱ inȱ thisȱ appeal,ȱ theȱ Schoolȱ Districtȱ wasȱ directedȱ toȱ seekȱpendentȱappellateȱjurisdiction,ȱwhichȱitȱhasȱnowȱdone.ȱ

II.ȱANALYSISȱ

TheȱSchoolȱDistrictȱraisesȱtwoȱissuesȱonȱappeal.ȱFirst,ȱthatȱ thisȱcourtȱshouldȱassertȱpendentȱjurisdictionȱoverȱtheȱdistrictȱ court’sȱdecisionȱtoȱdenyȱitsȱmotionȱtoȱdismissȱandȱsecond,ȱthatȱ theȱdistrictȱcourtȱerredȱinȱgrantingȱAsh’sȱmotionȱforȱprelimiȬ naryȱinjunction.ȱWeȱwillȱaddressȱeachȱissueȱinȱturn.ȱ

ȱ

ȱ

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A. PendentȱJurisdictionȱIsȱNotȱAppropriateȱ
Ordinarily,ȱanȱorderȱdenyingȱaȱmotionȱtoȱdismissȱisȱnotȱaȱ finalȱ judgmentȱ andȱ isȱ notȱ appealable.ȱ Seeȱ 28ȱ U.S.C.ȱ §ȱ 1291ȱ (providingȱfederalȱappellateȱcourtsȱwithȱjurisdictionȱoverȱapȬ pealsȱ fromȱ allȱ finalȱ decisions).ȱ But,ȱ theȱ Schoolȱ Districtȱ againȱ urgesȱ usȱ toȱ assertȱ pendentȱ appellateȱ jurisdictionȱ toȱ considerȱ theȱdenialȱofȱtheȱmotionȱtoȱdismiss.ȱWeȱdeclineȱtheȱinvitation.ȱ
Pendentȱappellateȱjurisdictionȱisȱaȱdiscretionaryȱdoctrine.ȱ Jonesȱ v.ȱ InfoCureȱ Corp.,ȱ 310ȱ F.3dȱ 529,ȱ 537ȱ (7thȱ Cir.ȱ 2002).ȱ Itȱ isȱ alsoȱaȱnarrowȱone,ȱAbeleszȱv.ȱOTPȱBank,ȱ692ȱF.3dȱ638,ȱ647ȱ(7thȱ Cir.ȱ 2012),ȱ whichȱ theȱ Supremeȱ Courtȱ sharplyȱ restrictedȱ inȱ Swintȱv.ȱChambersȱCountyȱCommission,ȱ514ȱU.S.ȱ35ȱ(1995).ȱAfterȱ Swint,ȱweȱnotedȱinȱUnitedȱStatesȱv.ȱBoardȱofȱSchoolȱCommissionȬ ersȱofȱtheȱCityȱofȱIndianapolis,ȱ128ȱF.3dȱ507ȱ(7thȱCir.ȱ1997),ȱthatȱ pendentȱappellateȱjurisdictionȱisȱaȱ“controversialȱandȱembatȬ tledȱdoctrine.”ȱId.ȱatȱ510.ȱNonetheless,ȱtheȱSupremeȱCourtȱrecȬ ognizedȱaȱnarrowȱpathȱforȱitsȱuseȱinȱClintonȱv.ȱJones,ȱ520ȱU.S.ȱ 681,ȱ 707ȱ n.41ȱ (1997),ȱ whereȱ itȱ foundȱ thatȱ aȱ collateralȱ orderȱ denyingȱpresidentialȱimmunityȱwasȱinextricablyȱintertwinedȱ withȱanȱorderȱthatȱstayedȱdiscoveryȱandȱpostponedȱtrial,ȱandȱ wasȱtherefore,ȱreviewableȱonȱappeal.ȱȱ
Whenȱ applicable,ȱ theȱ doctrineȱ allowsȱ forȱ reviewȱ ofȱ anȱ “otherwiseȱunappealableȱinterlocutoryȱorderȱifȱitȱisȱinextricaȬ blyȱ intertwinedȱwithȱ anȱappealableȱone.”ȱ Montanoȱ v.ȱCityȱofȱ Chicago,ȱ 375ȱ F.3dȱ 593,ȱ 599ȱ (7thȱ Cir.ȱ 2004)ȱ (quotingȱ Jones,ȱ 310ȱ F.3dȱatȱ536)ȱ(internalȱquotationȱmarksȱomitted).ȱThisȱrequiresȱ moreȱ thanȱ aȱ “closeȱ link”ȱ betweenȱ theȱ twoȱ orders.ȱ Id.ȱ atȱ 600.ȱ JudicialȱeconomyȱisȱalsoȱanȱinsufficientȱjustificationȱforȱinvokȬ ingȱ theȱ doctrineȱ andȱ disregardingȱ theȱ finalȬjudgmentȱ rule.ȱ McCarterȱv.ȱRet.ȱPlanȱforȱDist.ȱManagersȱofȱAm.ȱFamilyȱIns.ȱGrp.,ȱ

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540ȱF.3dȱ649,ȱ653ȱ(7thȱCir.ȱ2008).ȱRather,ȱweȱmustȱsatisfyȱourȬ selvesȱthatȱbasedȱuponȱtheȱspecificȱfactsȱofȱthisȱcase,ȱitȱisȱ“pracȬ ticallyȱindispensableȱthatȱweȱaddressȱtheȱmeritsȱofȱtheȱunapȬ pealableȱorderȱinȱorderȱtoȱresolveȱtheȱproperlyȬtakenȱappeal.”ȱ Montano,ȱ375ȱF.3dȱatȱ600ȱ(quotingȱUnitedȱStatesȱexȱrel.ȱValdersȱ Stoneȱ&ȱMarble,ȱInc.ȱv.ȱCȬWayȱConstr.ȱCo.,ȱ909ȱF.2dȱ259,ȱ262ȱ(7thȱ Cir.ȱ1990))ȱ(internalȱquotationȱmarksȱomitted);ȱseeȱalsoȱAbelesz,ȱ 692ȱF.3dȱatȱ647ȱ(“[P]endentȱappellateȱjurisdictionȱshouldȱnotȱ beȱ stretchedȱ toȱ appealȱ normallyȱ unappealableȱ interlocutoryȱ ordersȱthatȱhappenȱtoȱbeȱrelated—evenȱcloselyȱrelated—toȱtheȱ appealableȱorder.”).ȱSuchȱaȱhighȱthresholdȱisȱrequiredȱbecauseȱ aȱmoreȱrelaxedȱapproachȱwouldȱallowȱtheȱdoctrineȱtoȱswallowȱ theȱfinalȬjudgmentȱrule.ȱMontano,ȱ375ȱF.3dȱatȱ599ȱ(citingȱPatȬ tersonȱv.ȱPortch,ȱ853ȱF.2dȱ1399,ȱ1403ȱ(7thȱCir.ȱ1988)).ȱȱ
Asȱ weȱ discussȱ below,ȱ theȱ districtȱ courtȱ determinedȱ thatȱ Ashȱsufficientlyȱdemonstratedȱaȱlikelihoodȱofȱsuccessȱonȱtheȱ meritsȱofȱhisȱclaimsȱandȱthatȱpreliminaryȱinjunctiveȱreliefȱwasȱ warranted.ȱInȱdoingȱso,ȱtheȱdistrictȱcourtȱreferencedȱitsȱdeciȬ sionȱ toȱ denyȱ theȱ Schoolȱ District’sȱ motionȱ toȱ dismiss.ȱ Theȱ SchoolȱDistrictȱcontendsȱthatȱthisȱrenderedȱtheȱtwoȱdecisionsȱ inextricablyȱ intertwined.ȱ Therefore,ȱ itȱ reasonsȱ thatȱ pendentȱ jurisdictionȱisȱappropriateȱbecauseȱtoȱengageȱinȱaȱmeaningfulȱ reviewȱ ofȱ theȱ preliminaryȱ injunctionȱ order,ȱ theȱ courtȱ mustȱ alsoȱreviewȱtheȱdenialȱofȱtheȱmotionȱtoȱdismiss.ȱȱ
Merelyȱreferencingȱtheȱearlierȱdecisionȱtoȱdenyȱtheȱmotionȱ toȱdismiss,ȱhowever,ȱdidȱnotȱinextricablyȱintertwineȱtheȱtwoȱ orders.ȱCertainlyȱtheȱlegalȱissuesȱraisedȱinȱtheȱmotionsȱoverȬ lapped,ȱasȱbothȱmotionsȱchallenged,ȱinȱdifferentȱwaysȱandȱunȬ derȱdifferentȱstandards,ȱ theȱlikelyȱmeritsȱ ofȱAsh’sȱclaim.ȱInȬ vokingȱ pendentȱ jurisdictionȱ simplyȱ becauseȱ ofȱ thisȱ overlapȱ wouldȱessentiallyȱconvertȱaȱmotionȱforȱpreliminaryȱinjunctiveȱ

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reliefȱintoȱaȱmotionȱtoȱdismiss,ȱwhichȱwouldȱraiseȱtheȱthreshȬ oldȱshowingȱaȱplaintiffȱmustȱmakeȱbeforeȱreceivingȱinjunctiveȱ relief.ȱForȱallȱpracticalȱpurposes,ȱthisȱwouldȱmeanȱthatȱeveryȱ timeȱaȱmotionȱtoȱdismissȱisȱfiledȱsimultaneouslyȱwithȱaȱmotionȱ forȱ preliminaryȱ injunction,ȱ thisȱ doctrineȱ wouldȱ apply.ȱ Thisȱ makesȱ noȱ senseȱ andȱ weȱ doȱ notȱ seeȱ aȱ compellingȱ reasonȱ forȱ invokingȱtheȱdoctrineȱhere.ȱ
B. PreliminaryȱInjunctiveȱReliefȱWasȱProperȱ
Aȱpreliminaryȱinjunctionȱisȱanȱextraordinaryȱremedy.ȱSeeȱ GirlȱScoutsȱofȱManitouȱCouncil,ȱInc.ȱv.ȱGirlȱScoutsȱofȱUnitedȱStatesȱ ofȱAm.,ȱInc.,ȱ549ȱF.3dȱ1079,ȱ1085ȱ(7thȱCir.ȱ2008)ȱ(notingȱthatȱ“aȱ preliminaryȱ injunctionȱ isȱ anȱ exerciseȱ ofȱ aȱ veryȱ farȬreachingȱ power,ȱ neverȱ toȱ beȱ indulgedȱ inȱ exceptȱ inȱ aȱ caseȱ clearlyȱ deȬ mandingȱit.”)ȱ(internalȱquotationȱmarksȱandȱcitationȱomitted).ȱ Itȱisȱneverȱawardedȱasȱaȱmatterȱofȱright.ȱD.U.ȱv.ȱRhoades,ȱ825ȱ F.3dȱ331,ȱ335ȱ(7thȱCir.ȱ2016).ȱWeȱreviewȱtheȱgrantȱofȱaȱprelimȬ inaryȱ injunctionȱ forȱ theȱ abuseȱ ofȱ discretion,ȱ reviewingȱ legalȱ issuesȱdeȱnovo,ȱJonesȱv.ȱMarkiewiczȬQualkinbush,ȱ842ȱF.3dȱ1053,ȱ 1057ȱ (7thȱ Cir.ȱ 2016),ȱ whileȱ factualȱ findingsȱ areȱ reviewedȱ forȱ clearȱerror.ȱFed.ȱTradeȱCommȇnȱv.ȱAdvocateȱHealthȱCareȱNetwork,ȱ 841ȱF.3dȱ460,ȱ467ȱ(7thȱCir.ȱ2016).ȱSubstantialȱdeferenceȱisȱgivenȱ toȱtheȱdistrictȱcourt’sȱ“weighingȱofȱevidenceȱandȱbalancingȱofȱ theȱvariousȱequitableȱfactors.”ȱTurnellȱv.ȱCentiMarkȱCorp.,ȱ796ȱ F.3dȱ656,ȱ662ȱ(7thȱCir.ȱ2015).ȱ
Aȱ twoȬstepȱ inquiryȱ appliesȱ whenȱ determiningȱ whetherȱ suchȱ reliefȱ isȱ required.ȱ Id.ȱ atȱ 661.ȱ First,ȱ theȱ partyȱ seekingȱ theȱ preliminaryȱinjunctionȱhasȱtheȱburdenȱofȱmakingȱaȱthresholdȱ showing:ȱ(1)ȱthatȱheȱwillȱsufferȱirreparableȱharmȱabsentȱpreȬ liminaryȱ injunctiveȱ reliefȱ duringȱ theȱ pendencyȱ ofȱ hisȱ action;ȱ (2)ȱinadequateȱremediesȱatȱlawȱexist;ȱandȱ(3)ȱheȱhasȱaȱreasonȬ ableȱ likelihoodȱ ofȱ successȱ onȱ theȱ merits.ȱ Id.ȱ atȱ 661–62.ȱ Ifȱ theȱ

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movantȱsuccessfullyȱmakesȱthisȱshowing,ȱtheȱcourtȱmustȱenȬ gageȱ inȱ aȱ balancingȱ analysis,ȱ toȱ determineȱ whetherȱ theȱ balȬ anceȱofȱharmȱfavorsȱtheȱmovingȱpartyȱorȱwhetherȱtheȱharmȱtoȱ otherȱ partiesȱ orȱ theȱ publicȱ sufficientlyȱ outweighsȱ theȱ moȬ vant’sȱinterests.ȱJones,ȱ842ȱF.3dȱatȱ1058.ȱȱ
1. AshȱLikelyȱtoȱSufferȱIrreparableȱHarmȱȱ
Theȱ movingȱ partyȱ mustȱ demonstrateȱ thatȱ heȱ willȱ likelyȱ sufferȱirreparableȱharmȱabsentȱobtainingȱpreliminaryȱinjuncȬ tiveȱrelief.ȱSeeȱMichiganȱv.ȱU.S.ȱArmyȱCorpsȱofȱEng’rs,ȱ667ȱF.3dȱ 765,ȱ787ȱ(7thȱCir.ȱ2011).ȱThisȱrequiresȱmoreȱthanȱaȱmereȱpossiȬ bilityȱofȱharm.ȱId.ȱatȱ788.ȱItȱdoesȱnot,ȱhowever,ȱrequireȱthatȱtheȱ harmȱ actuallyȱ occurȱ beforeȱ injunctiveȱ reliefȱ isȱ warranted.ȱ Id.ȱ Norȱdoesȱitȱrequireȱthatȱtheȱharmȱbeȱcertainȱtoȱoccurȱbeforeȱaȱ courtȱmayȱgrantȱreliefȱonȱtheȱmerits.ȱId.ȱRather,ȱharmȱisȱconȬ sideredȱirreparableȱifȱitȱ“cannotȱbeȱpreventedȱorȱfullyȱrectifiedȱ byȱtheȱfinalȱjudgmentȱafterȱtrial.”ȱGirlȱScoutsȱofȱManitouȱCounȬ cil,ȱInc.,ȱ549ȱF.3dȱatȱ1089ȱ(quotingȱRolandȱMach.ȱCo.ȱv.ȱDresserȱ Indus.,ȱInc.,ȱ749ȱF.2dȱ380,ȱ386ȱ(7thȱCir.ȱ1984))ȱ(internalȱquotaȬ tionȱmarksȱomitted).ȱBecauseȱaȱdistrictȱcourt’sȱdeterminationȱ regardingȱirreparableȱharmȱisȱaȱfactualȱfinding,ȱitȱisȱreviewedȱ forȱclearȱerror.ȱId.ȱatȱ1087.ȱȱ
Onȱappeal,ȱtheȱSchoolȱDistrictȱarguesȱthatȱtheȱdistrictȱcourtȱ erredȱinȱfindingȱthatȱAshȱestablishedȱthatȱheȱwouldȱsufferȱirȬ reparableȱ harmȱ absentȱ aȱ preliminaryȱ injunction.ȱ Althoughȱ Ashȱ profferedȱ reportsȱ fromȱ twoȱ differentȱ expertsȱ regardingȱ theȱ harmȱ causedȱ toȱ himȱ byȱ theȱ Schoolȱ District’sȱ policy,ȱ theȱ SchoolȱDistrictȱcontendsȱthatȱneitherȱexpertȱwasȱableȱtoȱactuȬ allyȱquantifyȱthisȱharm.ȱFurther,ȱtheȱSchoolȱDistrictȱnotesȱthatȱ Ash’sȱfailureȱtoȱtakeȱadvantageȱofȱ“readilyȱavailableȱalternaȬ tives,”ȱnamelyȱtheȱgenderȬneutralȱbathrooms,ȱunderminesȱhisȱ claimȱofȱirreparableȱharm.ȱLastly,ȱtheȱSchoolȱDistrictȱpointsȱtoȱ

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Ash’sȱ delayȱ inȱ seekingȱ injunctiveȱ reliefȱ asȱ indicativeȱ ofȱ theȱ lackȱofȱirreparableȱharm.ȱ
Theȱ Schoolȱ District’sȱargumentsȱ missȱ theȱ point.ȱ Theȱ disȬ trictȱcourtȱwasȱpresentedȱwithȱexpertȱopinionsȱthatȱsupportedȱ Ash’sȱassertionȱthatȱheȱwouldȱsufferȱirreparableȱharmȱabsentȱ preliminaryȱrelief.ȱTheseȱexpertsȱopinedȱthatȱuseȱofȱtheȱboys’ȱ restroomsȱisȱintegralȱtoȱAsh’sȱtransitionȱandȱemotionalȱwellȬ being.ȱDr.ȱStephanieȱBudge,ȱaȱpsychologistȱwhoȱspecializesȱinȱ workingȱwithȱadolescentsȱandȱadultsȱwhoȱhaveȱGenderȱDysȬ phoria,ȱmetȱwithȱAshȱandȱhisȱmother,ȱandȱinȱherȱreportȱnotedȱ thatȱtheȱtreatmentȱAshȱfacedȱatȱschoolȱ“significantlyȱandȱnegȬ ativelyȱimpactedȱhisȱmentalȱhealthȱandȱoverallȱwellȬbeing.”ȱȱ
Dr.ȱBudgeȱalsoȱnotedȱthatȱAshȱreportedȱcurrentȱthoughtsȱ ofȱsuicideȱandȱthatȱhisȱdepressionȱworsenedȱeachȱtimeȱheȱhadȱ toȱ meetȱ withȱ schoolȱ officialsȱ regardingȱ hisȱ bathroomȱ usage.ȱ Ultimately,ȱ sheȱ opinedȱ thatȱ theȱ Schoolȱ District’sȱ actions,ȱ inȬ cludingȱ itsȱ bathroomȱ policy,ȱ whichȱ identifiedȱ Ashȱ asȱ transgenderȱandȱtherefore,ȱ“different,”ȱwereȱ“directlyȱcausingȱ significantȱ psychologicalȱ distressȱ andȱ placeȱ [Ash]ȱ atȱ riskȱ forȱ experiencingȱ lifeȬlongȱ diminishedȱ wellȬbeingȱ andȱ lifeȬfuncȬ tioning.”ȱTheȱdistrictȱcourtȱdidȱnotȱclearlyȱerrȱinȱrelyingȱuponȱ theseȱfindingsȱwhenȱitȱconcludedȱthatȱAshȱwouldȱsufferȱirrepȬ arableȱharmȱabsentȱpreliminaryȱinjunctiveȱrelief.ȱ
Further,ȱ theȱ Schoolȱ District’sȱ argumentȱ thatȱ Ash’sȱ harmȱ wasȱselfȬinflictedȱbecauseȱheȱchoseȱnotȱtoȱuseȱtheȱgenderȬneuȬ tralȱ restrooms,ȱ failsȱ toȱ comprehendȱ theȱ harmȱ thatȱ Ashȱ hasȱ identified.ȱTheȱSchoolȱDistrictȱactuallyȱexacerbatedȱtheȱharm,ȱ whenȱitȱdismissedȱhimȱtoȱaȱseparateȱbathroomȱwhereȱheȱwasȱ theȱonlyȱstudentȱwhoȱhadȱaccess.ȱThisȱactionȱfurtherȱstigmaȬ tizedȱAsh,ȱindicatingȱthatȱheȱwasȱ“different”ȱbecauseȱheȱwasȱ aȱtransgenderȱboy.ȱȱ

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Moreover,ȱtheȱrecordȱdemonstratesȱthatȱtheseȱbathroomsȱ wereȱnotȱlocatedȱcloseȱtoȱAsh’sȱclassrooms.ȱTherefore,ȱheȱwasȱ facedȱwithȱtheȱunenviableȱchoiceȱbetweenȱusingȱaȱbathroomȱ thatȱwouldȱfurtherȱstigmatizeȱhimȱandȱcauseȱhimȱtoȱmissȱclassȱ time,ȱorȱavoidȱuseȱofȱtheȱbathroomȱaltogetherȱatȱtheȱexpenseȱ ofȱhisȱhealth.ȱȱ

Additionally,ȱ Ashȱ allegedȱ thatȱ usingȱ theȱ singleȬuserȱ reȬ stroomsȱactuallyȱinvitedȱmoreȱscrutinyȱandȱattentionȱfromȱhisȱ peers,ȱwhoȱinquiredȱwhyȱheȱhadȱaccessȱtoȱtheseȱrestroomsȱandȱ askedȱintrusiveȱquestionsȱaboutȱhisȱtransition.ȱThisȱfurtherȱinȬ tensifiedȱ hisȱ depressionȱ andȱ anxietyȱ surroundingȱ theȱ Schoolȱ District’sȱ policy.ȱ Therefore,ȱ itȱ cannotȱ beȱ saidȱ thatȱ theȱ harmȱ wasȱ“selfȬinflicted.”ȱȱ

Finally,ȱAshȱdidȱnotȱdelayȱinȱseekingȱinjunctiveȱrelief.ȱHeȱ hadȱ usedȱ theȱ boys’ȱ bathroomȱ forȱ monthsȱ withoutȱ incident,ȱ andȱ heȱ filedȱ anȱ administrativeȱ complaintȱ withȱ theȱ DepartȬ mentȱ ofȱ Educationȱ inȱ Aprilȱ 2016,ȱ justȱ weeksȱ afterȱ theȱ schoolȱ beganȱtoȱenforceȱitsȱpolicyȱonceȱmore.ȱHeȱmadeȱtheȱdecisionȱ toȱwithdrawȱthatȱcomplaintȱoverȱtheȱsummerȱandȱcommenceȱ theȱ instantȱ litigationȱ insteadȱ soȱ thatȱ heȱ couldȱ pursueȱ injuncȬ tiveȱreliefȱpriorȱtoȱbeginningȱhisȱseniorȱyear.ȱItȱisȱimportantȱtoȱ noteȱ thatȱ Ashȱ wasȱ onȱ summerȱ breakȱ andȱ notȱ subjectȱ toȱ theȱ SchoolȱDistrict’sȱbathroomȱpolicyȱatȱtheȱtimeȱheȱchoseȱtoȱpurȬ sueȱtheȱlitigation.ȱTherefore,ȱAsh’sȱdecisionȱtoȱseekȱinjunctiveȱ reliefȱoverȱtheȱsummerȱratherȱthanȱinitiateȱanȱadministrativeȱ complaintȱ doesȱ notȱ undermineȱ hisȱ argumentȱ thatȱ theȱ policyȱ wasȱ inflicting,ȱ andȱ wouldȱ continueȱ toȱ inflict,ȱ irreparableȱ harm.ȱȱ

ȱ

ȱ

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2. NoȱAdequateȱRemediesȱatȱLawȱ
Theȱ movingȱ partyȱ mustȱ alsoȱ demonstrateȱ thatȱ heȱ hasȱ noȱ adequateȱ remedyȱ atȱ lawȱ shouldȱ theȱ preliminaryȱ injunctionȱ notȱissue.ȱProtamekȱIndus.,ȱLtd.ȱv.ȱEquitracȱCorp.,ȱ300ȱF.3dȱ808,ȱ 813ȱ(7thȱCir.ȱ2002).ȱThisȱdoesȱnotȱrequireȱthatȱheȱdemonstrateȱ thatȱtheȱremedyȱbeȱwhollyȱineffectual.ȱFoodcommȱIntȇlȱv.ȱBarry,ȱ 328ȱF.3dȱ300,ȱ304ȱ(7thȱCir.ȱ2003).ȱRather,ȱheȱmustȱdemonstrateȱ thatȱanyȱawardȱwouldȱbeȱ“seriouslyȱdeficientȱasȱcomparedȱtoȱ theȱharmȱsuffered.”ȱId.ȱȱ
WhileȱtheȱSchoolȱDistrictȱfocusesȱtheȱmajorityȱofȱitsȱarguȬ mentsȱ onȱ whyȱ Ash’sȱ harmȱ isȱ notȱ irreparable,ȱ itȱ alsoȱ arguesȱ thatȱanyȱharmȱheȱhasȱallegedlyȱsufferedȱcanȱbeȱremediedȱbyȱ monetaryȱ damages.ȱ Weȱ areȱ notȱ convinced.ȱ Whileȱ monetaryȱ damagesȱareȱusedȱtoȱcompensateȱplaintiffsȱinȱtortȱactions,ȱinȱ thoseȱsituationsȱtheȱdamagesȱrelateȱtoȱaȱpastȱevent,ȱwhereȱtheȱ harmȱ wasȱ inflictedȱ onȱ theȱ plaintiffȱ throughȱ negligenceȱ orȱ somethingȱcomparable.ȱButȱthisȱcaseȱisȱnotȱtheȱtypicalȱtortȱacȬ tion,ȱasȱAshȱhasȱallegedȱprospectiveȱharm.ȱHeȱhasȱassertedȱthatȱ theȱpolicyȱcausedȱhimȱtoȱcontemplateȱsuicide,ȱaȱclaimȱthatȱwasȱ creditedȱbyȱtheȱexpertȱreportȱofȱDr.ȱBudge.ȱWeȱcannotȱsayȱthatȱ thisȱ potentialȱ harm—hisȱ suicide—canȱ beȱ compensatedȱ byȱ monetaryȱdamages.ȱNorȱisȱthereȱanȱadequateȱremedyȱforȱpreȬ ventableȱ “lifeȬlongȱ diminishedȱ wellȬbeingȱ andȱ lifeȬfunctionȬ ing.”ȱTherefore,ȱweȱrejectȱtheȱSchoolȱDistrict’sȱanalogyȱtoȱtortȱ damagesȱandȱfindȱthatȱAshȱadequatelyȱestablishedȱthatȱthereȱ wasȱnoȱadequateȱremedyȱofȱlawȱavailable.ȱ
3. LikelihoodȱofȱSuccessȱonȱMeritsȱȱ
Aȱpartyȱmovingȱforȱpreliminaryȱinjunctiveȱreliefȱneedȱnotȱ demonstrateȱaȱlikelihoodȱofȱabsoluteȱsuccessȱonȱtheȱmerits.ȱInȬ stead,ȱ heȱ mustȱ onlyȱ showȱ thatȱ hisȱ chancesȱ toȱ succeedȱ onȱ hisȱ

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claimsȱareȱ“betterȱthanȱnegligible.”ȱCooperȱv.ȱSalazar,ȱ196ȱF.3dȱ 809,ȱ 813ȱ (7thȱ Cir.ȱ 1999).ȱ Thisȱ isȱ aȱ lowȱ threshold.ȱ U.S.ȱ Armyȱ Corpsȱ ofȱ Eng’rs,ȱ 667ȱ F.3dȱ atȱ 782.ȱ Ash’sȱ Amendedȱ Complaintȱ containsȱtwoȱclaims—oneȱpursuantȱtoȱTitleȱIXȱandȱtheȱotherȱ pursuantȱ toȱ theȱ Equalȱ Protectionȱ Clauseȱ ofȱ theȱ Fourteenthȱ Amendment.ȱWeȱwillȱdiscussȱeachȱclaimȱinȱturn.ȱȱ
i. TitleȱIXȱClaimȱ
TitleȱIXȱprovidesȱthatȱnoȱpersonȱ“shall,ȱonȱtheȱbasisȱofȱsex,ȱ beȱ excludedȱ fromȱ participationȱ in,ȱ beȱ deniedȱ theȱ benefitsȱ of,ȱ orȱbeȱsubjectedȱtoȱdiscriminationȱunderȱanyȱeducationalȱproȬ gramȱorȱactivityȱreceivingȱFederalȱfinancialȱassistanceȱ…ȱ.”ȱ20ȱ U.S.C.ȱ§ȱ1681(a);ȱseeȱalsoȱ34ȱC.F.R.ȱ§ȱ106.31(a).ȱCoveredȱinstituȬ tionsȱare,ȱtherefore,ȱamongȱotherȱthings,ȱprohibitedȱfrom:ȱ(1)ȱ providingȱdifferentȱaid,ȱbenefits,ȱorȱservices;ȱ(2)ȱdenyingȱaid,ȱ benefits,ȱorȱservices;ȱandȱ(3)ȱsubjectingȱanyȱpersonȱtoȱseparateȱ orȱdifferentȱrules,ȱsanctions,ȱorȱtreatmentȱonȱtheȱbasisȱofȱsex.ȱ Seeȱ34ȱC.F.R.ȱ§ȱ106.31(b)(2)–(4).ȱPursuantȱtoȱtheȱstatute’sȱreguȬ lations,ȱanȱinstitutionȱmayȱprovideȱseparate,ȱbutȱcomparable,ȱ bathroom,ȱshower,ȱandȱlockerȱfacilities.ȱId.ȱ§ȱ106.33.ȱTheȱparȬ tiesȱagreeȱthatȱtheȱSchoolȱDistrictȱreceivesȱfederalȱfundsȱandȱ isȱaȱcoveredȱinstitution.ȱȱ
Theȱparties’ȱdisputeȱfocusesȱonȱtheȱcoverageȱofȱTitleȱIXȱandȱ whetherȱunderȱtheȱstatute,ȱaȱtransgenderȱstudentȱwhoȱallegesȱ discriminationȱ onȱ theȱ basisȱ ofȱ hisȱ orȱ herȱ transgenderȱ statusȱ canȱstateȱaȱclaimȱofȱsexȱdiscrimination.ȱNeitherȱtheȱstatuteȱnorȱ theȱ regulationsȱ defineȱ theȱ termȱ “sex.”ȱ Alsoȱ absentȱ fromȱ theȱ statuteȱ isȱ theȱ termȱ “biological,”ȱ whichȱ theȱ Schoolȱ Districtȱ maintainsȱ isȱ aȱ necessaryȱ modifier.ȱ Therefore,ȱ weȱ turnȱ toȱ theȱ SupremeȱCourtȱandȱourȱcaseȱlawȱforȱguidance.ȱ

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First,ȱunderȱourȱownȱcaseȱlaw,ȱweȱdoȱnotȱseeȱaȱbarrierȱtoȱ Ash’sȱTitleȱIXȱclaim.ȱAlthoughȱnotȱasȱoftenȱasȱsomeȱofȱourȱsisȬ terȱcircuits,ȱthisȱcourtȱhasȱlookedȱtoȱTitleȱVIIȱwhenȱconstruingȱ TitleȱIX.ȱSeeȱe.g.,ȱSmithȱv.ȱMetro.ȱSch.ȱDist.ȱPerryȱTwp.,ȱ128ȱF.3dȱ 1014,ȱ1023ȱ(7thȱCir.ȱ1997)ȱ(notingȱthatȱ“itȱisȱhelpfulȱtoȱlookȱtoȱ TitleȱVIIȱtoȱdetermineȱwhetherȱtheȱallegedȱsexualȱharassmentȱ isȱsevereȱandȱpervasiveȱenoughȱtoȱconstituteȱillegalȱdiscrimiȬ nationȱ onȱ theȱ basisȱ ofȱ sexȱ forȱ purposesȱ ofȱ Titleȱ IX.”).ȱ Theȱ SchoolȱDistrictȱcontendsȱthatȱweȱshouldȱdoȱsoȱhere,ȱandȱreliesȱ onȱ ourȱ reasoningȱ inȱ Ulaneȱ v.ȱ Easternȱ Airlines,ȱ Inc.,ȱ 742ȱ F.2dȱ 1081ȱ(7thȱCir.ȱ1984),ȱtoȱconcludeȱthatȱAshȱcannotȱstateȱaȱclaimȱ underȱ Titleȱ IXȱ asȱ aȱ matterȱ ofȱ law.ȱ Otherȱ courtsȱ haveȱ agreedȱ withȱ theȱ Schoolȱ District’sȱ position.ȱ Seeȱ Etsittyȱ v.ȱ Utahȱ Transitȱ Auth.,ȱ502ȱF.3dȱ1215,ȱ1221ȱ(10thȱCir.ȱ2007)ȱ(relyingȱuponȱUlaneȱ toȱfindȱthatȱtranssexualsȱareȱnotȱaȱprotectedȱclassȱunderȱTitleȱ VII);ȱ Johnstonȱ v.ȱ Univ.ȱ ofȱ Pittsburghȱ ofȱ Commw.ȱ Sys.ȱ ofȱ Higherȱ Educ.,ȱ97ȱF.ȱSupp.ȱ3dȱ657,ȱ675–76ȱ(W.D.ȱPa.ȱ2015)ȱ(relyingȱuponȱ Ulaneȱtoȱfindȱthatȱaȱtransgenderȱstudentȱcannotȱstateȱaȱclaimȱ underȱTitleȱIX).ȱWeȱdisagree.ȱ
InȱUlane,ȱweȱnotedȱinȱdictaȱthatȱTitleȱVII’sȱprohibitionȱonȱ sexȱdiscriminationȱ“impliesȱthatȱitȱisȱunlawfulȱtoȱdiscriminateȱ againstȱwomenȱbecauseȱtheyȱareȱwomenȱandȱagainstȱmenȱbeȬ causeȱtheyȱareȱmen.”ȱ742ȱF.2dȱatȱ1085.ȱWeȱthenȱlookedȱtoȱtheȱ lackȱofȱlegislativeȱhistoryȱregardingȱtheȱmeaningȱofȱtheȱtermȱ “sex”ȱinȱTitleȱVIIȱandȱconcludedȱthatȱthisȱprohibitionȱshouldȱ beȱ “givenȱ aȱ narrow,ȱ traditionalȱ interpretation,ȱ whichȱ wouldȱ alsoȱ excludeȱ transsexuals.”ȱ Id.ȱ atȱ 1085–86.ȱ Thisȱ reasoning,ȱ however,ȱ cannotȱ andȱ doesȱ notȱ forecloseȱ Ashȱ andȱ otherȱ transgenderȱ studentsȱ fromȱ bringingȱ sexȬdiscriminationȱ claimsȱbasedȱuponȱaȱtheoryȱofȱsexȬstereotypingȱasȱarticulatedȱ fourȱ yearsȱ laterȱ byȱ theȱ Supremeȱ Courtȱ inȱ Priceȱ Waterhouseȱ v.ȱ Hopkins,ȱ490ȱU.S.ȱ228ȱ(1989).ȱ

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InȱPriceȱWaterhouse,ȱaȱpluralityȱofȱtheȱSupremeȱCourtȱandȱ twoȱjusticesȱconcurringȱinȱtheȱjudgment,ȱfoundȱthatȱtheȱplainȬ tiffȱhadȱadequatelyȱallegedȱthatȱherȱemployer,ȱinȱviolationȱofȱ TitleȱVII,ȱhadȱdiscriminatedȱagainstȱherȱforȱbeingȱtooȱmascuȬ line.ȱ Theȱ pluralityȱ furtherȱ emphasizedȱ thatȱ “weȱ areȱ beyondȱ theȱdayȱwhenȱanȱemployerȱcouldȱevaluateȱemployeesȱbyȱasȬ sumingȱorȱinsistingȱthatȱtheyȱmatchedȱtheȱstereotypeȱassociȬ atedȱwithȱtheirȱgroup.”ȱId.ȱatȱ251.ȱThus,ȱtheȱCourtȱembracedȱaȱ broadȱviewȱofȱTitleȱVII,ȱasȱCongressȱ“intendedȱtoȱstrikeȱatȱtheȱ entireȱspectrumȱofȱdisparateȱtreatmentȱofȱmenȱandȱwomenȱreȬ sultingȱfromȱsexȱstereotypes.”ȱId.;ȱseeȱalsoȱSprogisȱv.ȱUnitedȱAirȱ Lines,ȱInc.,ȱ444ȱF.2dȱ1194,ȱ1198ȱ(7thȱCir.ȱ1971)ȱ(“Inȱforbiddingȱ employersȱ toȱ discriminateȱ againstȱ individualsȱ becauseȱ ofȱ theirȱ sex,ȱ Congressȱ intendedȱ toȱ strikeȱ atȱ theȱ entireȱ spectrumȱ ofȱdisparateȱtreatmentȱofȱmenȱandȱwomenȱresultingȱfromȱsexȱ stereotypes.”).ȱ
TheȱSupremeȱCourtȱfurtherȱembracedȱanȱexpansiveȱviewȱ ofȱ Titleȱ VIIȱ inȱ Oncaleȱ v.ȱ Sundownerȱ Offshoreȱ Services,ȱ Inc.,ȱ 523ȱ U.S.ȱ75ȱ(1998),ȱwhereȱJusticeȱScalia,ȱwritingȱforȱaȱunanimousȱ Court,ȱdeclaredȱthatȱ“statutoryȱprohibitionsȱoftenȱgoȱbeyondȱ theȱprincipalȱevilȱtoȱcoverȱreasonablyȱcomparableȱevils,ȱandȱitȱ isȱultimatelyȱtheȱprovisionsȱofȱourȱlawsȱratherȱthanȱtheȱprinȬ cipalȱconcernsȱofȱourȱlegislatorsȱbyȱwhichȱweȱareȱgoverned.”ȱ Id.ȱatȱ79.ȱȱ
FollowingȱPriceȱWaterhouse,ȱthisȱcourtȱandȱothersȱhaveȱrecȬ ognizedȱaȱcauseȱofȱactionȱunderȱTitleȱVIIȱwhenȱanȱadverseȱacȬ tionȱ isȱ takenȱ becauseȱ ofȱ anȱ employee’sȱ failureȱ toȱ conformȱ toȱ sexȱstereotypes.ȱSee,ȱe.g.,ȱDoeȱv.ȱCityȱofȱBelleville,ȱ119ȱF.3dȱ563,ȱ 580–81ȱ(7thȱCir.ȱ1997),ȱvacatedȱonȱotherȱgrounds,ȱ523ȱU.S.ȱ1001ȱ (1998);ȱChristiansenȱv.ȱOmnicomȱGrp.,ȱInc.,ȱ852ȱF.3dȱ195,ȱ201ȱ(2dȱ Cir.ȱ2017);ȱBibbyȱv.ȱPhila.ȱCocaȬColaȱBottlingȱCo.,ȱ260ȱF.3dȱ257,ȱ

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263Ȭ64ȱ (3dȱ Cir.ȱ 2001);ȱ Nicholsȱ v.ȱ Aztecaȱ Rest.ȱ Enters.,ȱ Inc.,ȱ 256ȱ F.3dȱ864,ȱ874–75ȱ(9thȱCir.ȱ2001);ȱHigginsȱv.ȱNewȱBalanceȱAthleticȱ Shoe,ȱInc.,ȱ194ȱF.3dȱ252,ȱ261ȱn.4ȱ(1stȱCir.ȱ1999).ȱOurȱmostȱrecentȱ applicationȱoccurredȱwhen,ȱsittingȱenȱbanc,ȱweȱheldȱthatȱaȱhoȬ mosexualȱplaintiffȱcanȱstateȱaȱTitleȱVIIȱclaimȱofȱsexȱdiscrimiȬ nationȱbasedȱuponȱaȱtheoryȱofȱsexȬstereotyping.ȱHivelyȱv.ȱIvyȱ Techȱ Cmty.ȱ Coll.ȱ ofȱ Ind.,ȱ 853ȱ F.3dȱ 339,ȱ 351–52ȱ (7thȱ Cir.ȱ 2017)ȱ (holdingȱthatȱaȱhomosexualȱplaintiffȱmayȱstateȱaȱclaimȱforȱsexȬ basedȱdiscriminationȱunderȱTitleȱVIIȱunderȱeitherȱaȱsexȱstereȬ otypingȱtheoryȱorȱunderȱtheȱassociationalȱtheory).ȱȱ
Theȱ Schoolȱ Districtȱ arguesȱ thatȱ evenȱ underȱ aȱ sexȬstereoȬ typingȱtheory,ȱAshȱcannotȱdemonstrateȱaȱlikelihoodȱofȱsuccessȱ onȱhisȱTitleȱIXȱclaimȱbecauseȱitsȱpolicyȱisȱnotȱbasedȱonȱwhetherȱ theȱstudentȱbehaves,ȱwalks,ȱtalks,ȱorȱdressesȱinȱaȱmannerȱthatȱ isȱ inconsistentȱ withȱ anyȱ preconceivedȱ notionsȱ ofȱ sexȱstereoȬ types.ȱInstead,ȱitȱcontendsȱthatȱasȱaȱmatterȱofȱlaw,ȱrequiringȱaȱ biologicalȱfemaleȱtoȱuseȱtheȱwomen’sȱbathroomȱisȱnotȱsexȬsteȬ reotyping.ȱHowever,ȱthisȱviewȱisȱtooȱnarrow.ȱ
Byȱdefinition,ȱaȱtransgenderȱindividualȱdoesȱnotȱconformȱ toȱtheȱsexȬbasedȱstereotypesȱofȱtheȱsexȱthatȱheȱorȱsheȱwasȱasȬ signedȱ atȱ birth.ȱ Weȱ areȱ notȱ aloneȱ inȱ thisȱ belief.ȱ Seeȱ Glennȱ v.ȱ Brumby,ȱ663ȱF.3dȱ1312ȱ(11thȱCir.ȱ2011).ȱInȱGlenn,ȱtheȱEleventhȱ Circuitȱnotedȱthatȱ“[a]ȱpersonȱisȱdefinedȱasȱtransgenderȱpreȬ ciselyȱbecauseȱofȱtheȱperceptionȱthatȱhisȱorȱherȱbehaviorȱtransȬ gressesȱgenderȱstereotypes.”ȱId.ȱatȱ1316.ȱTheȱEleventhȱCircuitȱ reiteratedȱthisȱconclusionȱinȱaȱperȱcuriamȱunpublishedȱopinion,ȱ notingȱ thatȱ “sexȱ discriminationȱ includesȱ discriminationȱ againstȱ aȱ transgenderȱ personȱ forȱ genderȱ nonconformity.”ȱ Chavezȱv.ȱCreditȱNationȱAutoȱSales,ȱLLC,ȱ641ȱF.ȱAppȇxȱ883,ȱ884ȱ (11thȱCir.ȱ2016)ȱ(unpub.).ȱ

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TheȱSixthȱCircuitȱhasȱalsoȱrecognizedȱaȱtransgenderȱplainȬ tiff’sȱabilityȱtoȱbringȱaȱsexȬstereotypingȱclaim.ȱInȱSmithȱv.ȱCityȱ ofȱ Salemȱ 378ȱ F.3dȱ 566ȱ (6thȱ Cir.ȱ 2004),ȱ theȱ plaintiffȱ wasȱ diagȬ nosedȱ withȱ Genderȱ Identityȱ Disorder,ȱ aȱ conditionȱ laterȱ reȬ namedȱGenderȱDysphoria.ȱBornȱaȱmale,ȱtheȱplaintiffȱbeganȱtoȱ presentȱatȱworkȱwithȱaȱmoreȱfeminineȱappearanceȱandȱmanȬ nerisms.ȱHe5ȱallegedȱinȱhisȱcomplaintȱthatȱasȱaȱresult,ȱhisȱemȬ ployerȱschemedȱtoȱtakeȱactionȱagainstȱhimȱandȱultimatelyȱsubȬ jectedȱhimȱtoȱaȱpretextualȱsuspensionȱinȱviolationȱofȱTitleȱVII.ȱ Whileȱ theȱdistrictȱ courtȱconcludedȱthatȱbecauseȱtheȱplaintiffȱ wasȱtranssexualȱheȱwasȱnotȱentitledȱtoȱTitleȱVII’sȱprotections,ȱ theȱSixthȱCircuitȱdisagreed.ȱ
Instead,ȱtheȱSixthȱCircuitȱnotedȱthatȱPriceȱWaterhouseȱestabȬ lishedȱ thatȱ theȱ prohibitionȱ onȱ sexȱ discriminationȱ “encomȬ passesȱ bothȱ theȱ biologicalȱ differencesȱ betweenȱ menȱ andȱ women,ȱ andȱ genderȱ discrimination,ȱ thatȱ is,ȱ discriminationȱ basedȱonȱaȱfailureȱtoȱconformȱtoȱstereotypicalȱgenderȱnorms.”ȱ Id.ȱatȱ573ȱ(citingȱPriceȱWaterhouse,ȱ490ȱU.S.ȱatȱ251).ȱIfȱTitleȱVIIȱ prohibitsȱanȱemployerȱfromȱdiscriminatingȱagainstȱaȱwomanȱ forȱdressingȱtooȱmasculine,ȱthen,ȱtheȱcourtȱreasoned,ȱTitleȱVIIȱ likewiseȱprohibitsȱanȱemployerȱfromȱdiscriminatingȱagainstȱaȱ manȱwhoȱdressesȱinȱaȱwayȱthatȱitȱperceivesȱasȱtooȱfeminine.ȱInȱ bothȱexamplesȱtheȱdiscriminationȱwouldȱnotȱoccurȱbutȱforȱtheȱ victim’sȱsex,ȱinȱviolationȱofȱTitleȱVII.ȱId.ȱatȱ574.ȱTherefore,ȱtheȱ plaintiff’sȱstatusȱasȱtranssexualȱwasȱnotȱaȱbarȱtoȱhisȱclaim.ȱȱ
Severalȱ districtȱ courtsȱ haveȱ adoptedȱ thisȱ reasoning,ȱ findȬ ingȱ thatȱ aȱ transgenderȱ plaintiffȱ canȱ stateȱ aȱ claimȱ underȱ Titleȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
5WeȱwillȱuseȱtheȱmasculineȱpronounȱtoȱreferȱtoȱtheȱSmithȱplaintiffȱforȱ theȱpurposeȱofȱclarity,ȱasȱthisȱisȱhowȱtheȱSixthȱCircuitȱreferredȱtoȱtheȱSmithȱ plaintiffȱthroughoutȱitsȱopinion.

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VIIȱ forȱ sexȱ discriminationȱ onȱ theȱ basisȱ ofȱ aȱ sexȬstereotypingȱ theory.ȱSeeȱValentineȱGeȱv.ȱDunȱ&ȱBradstreet,ȱInc.,ȱNo.ȱ6:15ȬCVȬ 1029ȬORLȬ41GJK,ȱ 2017ȱ WLȱ 347582,ȱ atȱ *4ȱ (M.D.ȱ Fla.ȱ Jan.ȱ 24,ȱ 2017);ȱRobertsȱv.ȱClarkȱCty.ȱSch.ȱDist.,ȱ215ȱF.ȱSupp.ȱ3dȱ1001,ȱ1014ȱ (D.ȱNev.ȱ2016),ȱreconsiderationȱdenied,ȱNo.ȱ2:15ȬCVȬ00388ȬJADȬ PAL,ȱ2016ȱWLȱ6986346ȱ(D.ȱNev.ȱNov.ȱ28,ȱ2016);ȱFabianȱv.ȱHosp.ȱ ofȱ Cent.ȱ Conn.,ȱ 172ȱ F.ȱ Supp.ȱ 3dȱ 509,ȱ 527ȱ (D.ȱ Conn.ȱ 2016);ȱ E.E.O.C.ȱv.ȱR.G.ȱ&ȱG.R.ȱHarrisȱFuneralȱHomes,ȱInc.,ȱ100ȱF.ȱSupp.ȱ 3dȱ 594,ȱ 603ȱ (E.D.ȱ Mich.ȱ 2015);ȱ Lopezȱ v.ȱ Riverȱ Oaksȱ Imagingȱ &ȱ DiagnosticȱGrp.,ȱInc.,ȱ542ȱF.ȱSupp.ȱ2dȱ653,ȱ660ȱ(S.D.ȱTex.ȱ2008);ȱ Schroerȱ v.ȱ Billington,ȱ 577ȱ F.ȱ Supp.ȱ 2dȱ 293,ȱ 305ȱ (D.D.C.ȱ 2008).ȱ Further,ȱcourtsȱhaveȱappliedȱPriceȱWaterhouseȱandȱfoundȱthatȱ transgenderȱ plaintiffsȱ canȱ stateȱ claimsȱ basedȱ uponȱ aȱ sexȬsteȬ reotypingȱtheoryȱunderȱtheȱGenderȱMotivatedȱViolenceȱAct,ȱ Schwenkȱ v.ȱ Hartford,ȱ 204ȱ F.3dȱ 1187,ȱ 1200ȱ (9thȱ Cir.ȱ 2000),ȱ andȱ theȱ Equalȱ Creditȱ Opportunityȱ Act,ȱ Rosaȱ v.ȱ Parkȱ W.ȱ Bankȱ &ȱ TrustȱCo.ȱ214ȱF.3dȱ213,ȱ215–16ȱ(1stȱCir.ȱ2000).ȱ
Here,ȱhowever,ȱtheȱSchoolȱDistrictȱarguesȱthatȱthisȱreasonȬ ingȱfliesȱinȱtheȱfaceȱofȱTitleȱIX,ȱasȱCongressȱhasȱnotȱexplicitlyȱ addedȱ transgenderȱstatusȱasȱaȱprotectedȱcharacteristicȱtoȱeiȬ therȱ Titleȱ VIIȱ orȱ Titleȱ IX,ȱ despiteȱ havingȱ opportunitiesȱ toȱ doȱ so.ȱ Seeȱ e.g.,ȱ Studentȱ NonȬDiscriminationȱ Actȱ ofȱ 2015ȱ S.ȱ 439ȱ 114thȱ Cong.ȱ (2015).ȱ Theȱ Supremeȱ Courtȱ hasȱ rejectedȱ thisȱ arȬ gument,ȱstatingȱthatȱcongressionalȱinactionȱ“lacksȱpersuasiveȱ significanceȱ becauseȱ severalȱ equallyȱ tenableȱ inferencesȱ mayȱ beȱdrawnȱfromȱsuchȱinaction,ȱincludingȱtheȱinferenceȱthatȱtheȱ existingȱlegislationȱalreadyȱincorporatedȱtheȱofferedȱchange.”ȱ Pensionȱ Benefit.ȱ Guar.ȱ Corp.ȱ v.ȱ LTVȱ Corp.,ȱ 496ȱ U.S.ȱ 633,ȱ 650ȱ (1990)ȱ(quotingȱUnitedȱStatesȱv.ȱWise,ȱ370ȱU.S.ȱ405,ȱ411ȱ(1962))ȱ (internalȱquotationȱmarksȱomitted);ȱseeȱalsoȱHively,ȱ853ȱF.3dȱatȱ 344ȱ (“[I]tȱ isȱ simplyȱ tooȱ difficultȱ toȱ drawȱ aȱ reliableȱ inferenceȱ fromȱtheseȱtruncatedȱlegislativeȱinitiativesȱtoȱrestȱourȱopinionȱ

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onȱthem.”).ȱTherefore,ȱCongressionalȱinactionȱisȱnotȱdetermiȬ native.ȱ
Rather,ȱAshȱcanȱdemonstrateȱaȱlikelihoodȱofȱsuccessȱonȱtheȱ meritsȱofȱhisȱclaimȱbecauseȱheȱhasȱallegedȱthatȱtheȱSchoolȱDisȬ trictȱhasȱdeniedȱhimȱaccessȱtoȱtheȱboys’ȱrestroomȱbecauseȱheȱ isȱ transgender.ȱ Aȱ policyȱ thatȱ requiresȱ anȱ individualȱ toȱ useȱ aȱ bathroomȱthatȱdoesȱnotȱconformȱwithȱhisȱorȱherȱgenderȱidenȬ tityȱ punishesȱthatȱ individualȱforȱhisȱorȱherȱgenderȱnonȬconȬ formance,ȱwhichȱinȱturnȱviolatesȱTitleȱIX.ȱTheȱSchoolȱDistrict’sȱ policyȱalsoȱsubjectsȱAsh,ȱasȱaȱtransgenderȱstudent,ȱtoȱdifferentȱ rules,ȱ sanctions,ȱ andȱ treatmentȱ thanȱ nonȬtransgenderȱ stuȬ dents,ȱinȱviolationȱofȱTitleȱIX.ȱProvidingȱaȱgenderȬneutralȱalȬ ternativeȱ isȱ notȱ sufficientȱ toȱ relieveȱ theȱ Schoolȱ Districtȱ fromȱ liability,ȱ asȱ itȱ isȱ theȱ policyȱ itselfȱ whichȱ violatesȱ theȱ Act.ȱ FurȬ ther,ȱbasedȱonȱtheȱrecordȱhere,ȱtheseȱgenderȬneutralȱalternaȬ tivesȱwereȱnotȱtrueȱalternativesȱbecauseȱofȱtheirȱdistantȱlocaȬ tionȱ toȱ Ash’sȱ classroomsȱ andȱ theȱ increasedȱ stigmatizationȱ theyȱcausedȱAsh.ȱRather,ȱtheȱSchoolȱDistrictȱonlyȱcontinuedȱtoȱ treatȱ Ashȱ differentlyȱ whenȱ itȱ providedȱ himȱ withȱ accessȱ toȱ theseȱgenderȬneutralȱbathroomsȱbecauseȱheȱwasȱtheȱonlyȱstuȬ dentȱgivenȱaccess.ȱ
And,ȱwhileȱtheȱSchoolȱDistrictȱrepeatedlyȱassertsȱthatȱAshȱ mayȱnotȱ“unilaterallyȱdeclare”ȱhisȱgender,ȱthisȱargumentȱmisȬ representsȱAsh’sȱclaimsȱandȱdismissesȱhisȱtransgenderȱstatus.ȱ Thisȱisȱnotȱaȱcaseȱwhereȱaȱstudentȱhasȱmerelyȱannouncedȱthatȱ heȱ isȱ aȱ differentȱ gender.ȱ Rather,ȱ Ashȱ hasȱ aȱ medicallyȱ diagȬ nosedȱandȱdocumentedȱcondition.ȱSinceȱhisȱdiagnosis,ȱheȱhasȱ consistentlyȱlivedȱinȱaccordanceȱwithȱhisȱgenderȱidentity.ȱThisȱ lawȱsuitȱdemonstratesȱthatȱtheȱdecisionȱtoȱdoȱsoȱwasȱnotȱwithȬ outȱcostȱorȱpain.ȱTherefore,ȱweȱfindȱthatȱAshȱhasȱsufficientlyȱ

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establishedȱaȱprobabilityȱofȱsuccessȱonȱtheȱmeritsȱofȱhisȱTitleȱ IXȱclaim.ȱȱ
ii. EqualȱProtectionȱClaimȱ
Althoughȱweȱareȱmindfulȱofȱourȱdutyȱtoȱavoidȱrenderingȱ unnecessaryȱ constitutionalȱ decisions,ȱ ISIȱ Intȇl,ȱ Inc.ȱ v.ȱ Bordenȱ Ladnerȱ Gervaisȱ LLP,ȱ 256ȱ F.3dȱ 548,ȱ 552ȱ (7thȱ Cir.ȱ 2001),ȱ asȱ amendedȱ(Julyȱ2,ȱ2001),ȱweȱwillȱaddressȱAsh’sȱEqualȱProtectionȱ claimȱ asȱ theȱ districtȱ courtȱ determinedȱ thatȱ Ashȱ alsoȱ demonȬ stratedȱanȱadequateȱprobabilityȱofȱsuccessȱonȱtheȱclaimȱtoȱjusȬ tifyȱ theȱ preliminaryȱ injunction.ȱ Theȱ Equalȱ Protectionȱ Clauseȱ ofȱtheȱFourteenthȱAmendmentȱ“isȱessentiallyȱaȱdirectionȱthatȱ allȱpersonsȱsimilarlyȱsituatedȱshouldȱbeȱtreatedȱalike.”ȱCityȱofȱ Cleburneȱv.ȱCleburneȱLivingȱCtr.,ȱ473ȱU.S.ȱ432,ȱ439ȱ(1985)ȱ(citingȱ Plylerȱ v.ȱ Doe,ȱ 457ȱ U.S.ȱ 202,ȱ 216ȱ (1982)).ȱ Itȱ therefore,ȱ protectsȱ againstȱ intentionalȱ andȱ arbitraryȱ discrimination.ȱ Seeȱ Vill.ȱ ofȱ Willowbrookȱ v.ȱ Olech,ȱ 528ȱ U.S.ȱ 562,ȱ 564ȱ (2000)ȱ (perȱ curiam).ȱ Generally,ȱ stateȱ actionȱ isȱ presumedȱ toȱ beȱ lawfulȱ andȱ willȱ beȱ upheldȱifȱtheȱclassificationȱdrawnȱbyȱtheȱstatuteȱisȱrationallyȱ relatedȱtoȱaȱlegitimateȱstateȱinterest.ȱCityȱofȱCleburne,ȱ473ȱU.S.ȱ atȱ440.ȱ
Theȱ rationalȱ basisȱ test,ȱ however,ȱ doesȱ notȱ applyȱ whenȱ aȱ classificationȱisȱbasedȱuponȱsex.ȱRather,ȱaȱsexȬbasedȱclassificaȬ tionȱisȱsubjectȱtoȱheightenedȱscrutiny,ȱasȱsexȱ“frequentlyȱbearsȱ noȱrelationȱtoȱtheȱabilityȱtoȱperformȱorȱcontributeȱtoȱsociety.”ȱ Id.ȱatȱ440–41ȱ(quotingȱFrontieroȱv.ȱRichardson,ȱ411ȱU.S.ȱ677,ȱ686ȱ (1973))ȱ(internalȱquotationȱmarksȱomitted);ȱseeȱalsoȱJ.E.B.ȱv.ȱAlȬ abamaȱexȱrel.ȱT.B.,ȱ511ȱU.S.ȱ127,ȱ135ȱ(1994).ȱWhenȱaȱsexȬbasedȱ classificationȱ isȱ used,ȱ theȱ burdenȱ restsȱ withȱ theȱ stateȱ toȱ demonstrateȱ thatȱ itsȱ profferedȱ justificationȱ isȱ “exceedinglyȱ persuasive.”ȱUnitedȱStatesȱv.ȱVirginia,ȱ518ȱU.S.ȱ515,ȱ533ȱ(1996);ȱ seeȱalsoȱHaydenȱexȱrel.ȱA.H.ȱv.ȱGreensburgȱCmty.ȱSch.ȱCorp.,ȱ743ȱ

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F.3dȱ 569,ȱ 577ȱ (7thȱ Cir.ȱ 2014).ȱ Thisȱ requiresȱ theȱ stateȱ toȱ showȱ thatȱtheȱ“classificationȱservesȱimportantȱgovernmentalȱobjecȬ tivesȱ andȱ thatȱ theȱ discriminatoryȱ meansȱ employedȱ areȱ subȬ stantiallyȱrelatedȱtoȱtheȱachievementȱofȱthoseȱobjectives.“ȱVirȬ ginia,ȱ518ȱU.S.ȱatȱ524ȱ(internalȱquotationȱmarksȱomitted).ȱItȱisȱ notȱ sufficientȱ toȱ provideȱ aȱ hypothesizedȱ orȱ postȱ hocȱ justificaȬ tionȱcreatedȱinȱresponseȱtoȱlitigation.ȱId.ȱatȱ533.ȱNorȱmayȱtheȱ justificationȱ beȱ basedȱ uponȱ overbroadȱ generalizationsȱ aboutȱ sex.ȱId.ȱInstead,ȱtheȱjustificationȱmustȱbeȱgenuine.ȱId.ȱ
IfȱaȱstateȱactorȱcannotȱdefendȱaȱsexȬbasedȱclassificationȱbyȱ relyingȱ uponȱ overbroadȱ generalizations,ȱ itȱ followsȱ thatȱ sexȬ basedȱstereotypesȱareȱalsoȱinsufficientȱtoȱsustainȱaȱclassificaȬ tion.ȱSeeȱJ.E.B.,ȱ511ȱU.S.ȱatȱ138ȱ(rejectingȱtheȱstate’sȱrelianceȱonȱ sexȬbasedȱ stereotypesȱ asȱ aȱ defenseȱ toȱ theȱ discriminatoryȱ useȱ ofȱ peremptoryȱ challengesȱ duringȱ juryȱ selection);ȱ seeȱ Glennȱ v.ȱ Brumby,ȱ 663ȱ F.3dȱ 1312,ȱ 1318ȱ (11thȱ Cir.ȱ 2011)ȱ (“Allȱ persons,ȱ whetherȱ transgenderȱ orȱ not,ȱ areȱ protectedȱ fromȱ discriminaȬ tionȱonȱtheȱbasisȱofȱgenderȱstereotype.”).ȱȱ
Asȱaȱthresholdȱmatter,ȱweȱmustȱdetermineȱwhatȱstandardȱ ofȱreviewȱappliesȱtoȱAsh’sȱclaim.ȱTheȱSchoolȱDistrictȱurgesȱusȱ toȱapplyȱtheȱrationalȱbasisȱtest,ȱarguingȱthatȱtransgenderȱstaȬ tusȱisȱnotȱaȱsuspectȱclass.ȱApplyingȱthatȱtest,ȱtheȱSchoolȱDisȬ trictȱcontendsȱthatȱitsȱpolicyȱisȱ presumptivelyȱ constitutionalȱ andȱthatȱrequiringȱstudentsȱtoȱuseȱfacilitiesȱcorrespondingȱtoȱ theirȱbirthȱsexȱtoȱprotectȱtheȱprivacyȱofȱallȱstudentsȱisȱaȱrationalȱ basisȱforȱitsȱpolicy.ȱSo,ȱtheȱSchoolȱDistrictȱmaintainsȱthatȱAshȱ cannotȱdemonstrateȱaȱlikelihoodȱofȱsuccessȱonȱhisȱEqualȱProȬ tectionȱClaim.ȱ
Ashȱ disagrees.ȱ Heȱ arguesȱ thatȱ transgenderȱ statusȱ shouldȱ beȱ entitledȱ toȱ heightenedȱ scrutinyȱ inȱ itsȱ ownȱ right,ȱ asȱ transgenderȱpeopleȱareȱaȱminorityȱwhoȱhaveȱhistoricallyȱbeenȱ

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subjectedȱtoȱdiscriminationȱbasedȱuponȱtheȱimmutableȱcharȬ acteristicsȱofȱtheirȱgenderȱidentities.ȱAlternatively,ȱheȱarguesȱ thatȱ evenȱ ifȱ transgenderȱ statusȱ isȱ notȱ affordedȱ heightenedȱ scrutinyȱinȱitsȱownȱright,ȱtheȱSchoolȱDistrict’sȱbathroomȱpolicyȱ createsȱ aȱ sexȬbasedȱ classificationȱ suchȱ thatȱ heightenedȱ scruȬ tinyȱshouldȱapply.ȱȱ
ThereȱisȱnoȱdenyingȱthatȱtransgenderȱindividualsȱfaceȱdisȬ crimination,ȱharassment,ȱandȱviolenceȱbecauseȱofȱtheirȱgenderȱ identity.ȱAccordingȱtoȱaȱreportȱissuedȱbyȱtheȱNationalȱCenterȱ forȱ Transgenderȱ Equality,ȱ 78%ȱ ofȱ studentsȱ whoȱ identifyȱ asȱ transgenderȱ orȱ asȱ genderȱ nonȬconformant,ȱ reportȱ beingȱ harȬ assedȱwhileȱinȱgradesȱKȬ12.ȱSeeȱJaimeȱM.ȱGrantȱetȱal.,ȱInjusticeȱ atȱEveryȱTurn:ȱAȱReportȱofȱtheȱNationalȱTransgenderȱDiscriminaȬ tionȱ Survey,ȱ Natȇlȱ Centerȱ forȱ Transgenderȱ Equality,ȱ atȱ 33ȱ (2011),ȱ availableȱ atȱ http://www.transequality.org/sites/deȬ fault/files/docs/resources/NTDS_Report.pdf.ȱ Theseȱ sameȱ inȬ dividualsȱ inȱ KȬ12ȱ alsoȱ reportedȱ anȱ alarmingȱ rateȱ ofȱ assault,ȱ withȱ35%ȱreportingȱphysicalȱassaultȱandȱ12%ȱreportingȱsexualȱ assault.ȱ Id.ȱ Asȱ aȱ result,ȱ 15%ȱ ofȱ transgenderȱ andȱ genderȱ nonȬ conformantȱstudentsȱsurveyedȱmadeȱtheȱdecisionȱtoȱdropȱout.ȱ Id.ȱTheseȱstatisticsȱareȱalarming.ȱButȱthisȱcaseȱdoesȱnotȱrequireȱ usȱtoȱreachȱtheȱquestionȱofȱwhetherȱtransgenderȱstatusȱisȱperȱ seȱ entitledȱ toȱ heightenedȱ scrutiny.ȱ Itȱ isȱ enoughȱ toȱ stayȱ that,ȱ justȱasȱinȱPriceȱWaterhouse,ȱtheȱrecordȱforȱtheȱpreliminaryȱinȬ junctionȱshowsȱsexȱstereotyping.ȱWeȱnoteȱasȱwellȱthatȱthereȱisȱ noȱrequirementȱthatȱeveryȱgirl,ȱorȱeveryȱboy,ȱbeȱsubjectedȱtoȱ theȱsameȱstereotyping.ȱItȱisȱenoughȱthatȱAshȱhasȱexperiencedȱ thisȱformȱofȱsexȱdiscrimination.ȱȱ
Here,ȱtheȱSchoolȱDistrict’sȱpolicyȱcannotȱbeȱstatedȱwithoutȱ referencingȱ sex,ȱ asȱ theȱ Schoolȱ Districtȱ decidesȱ whichȱ bathȬ

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roomȱaȱstudentȱmayȱuseȱbasedȱuponȱtheȱsexȱlistedȱonȱtheȱstuȬ dent’sȱbirthȱcertificate.ȱThisȱpolicyȱisȱinherentlyȱbasedȱuponȱaȱ sexȬclassificationȱandȱheightenedȱreviewȱapplies.ȱFurther,ȱtheȱ SchoolȱDistrictȱarguesȱthatȱsinceȱitȱtreatsȱallȱboysȱandȱgirlsȱtheȱ same,ȱitȱdoesȱnotȱviolateȱtheȱEqualȱProtectionȱClause.ȱThisȱisȱ untrue.ȱRather,ȱtheȱSchoolȱDistrictȱtreatsȱtransgenderȱstudentsȱ likeȱAsh,ȱwhoȱfailȱtoȱconformȱtoȱtheȱsexȬbasedȱstereotypesȱasȬ sociatedȱ withȱ theirȱ assignedȱ sexȱ atȱ birth,ȱ differently.ȱ Theseȱ studentsȱareȱdisciplinedȱunderȱtheȱSchoolȱDistrict’sȱbathroomȱ policyȱifȱtheyȱchooseȱtoȱuseȱaȱbathroomȱthatȱconformsȱtoȱtheirȱ genderȱidentity.ȱThisȱplacesȱtheȱburdenȱonȱtheȱSchoolȱDistrictȱ toȱdemonstrateȱthatȱitsȱjustificationȱforȱitsȱbathroomȱpolicyȱisȱ notȱonlyȱgenuine,ȱbutȱalsoȱ“exceedinglyȱpersuasive.”ȱSeeȱVirȬ ginia,ȱ518ȱU.S.ȱatȱ533.ȱThisȱburdenȱhasȱnotȱbeenȱmetȱhere.ȱ
TheȱSchoolȱDistrictȱdefendsȱitsȱbathroomȱpolicyȱbyȱclaimȬ ingȱ itȱ needsȱ toȱ protectȱ theȱ privacyȱ rightsȱ ofȱ allȱ 22,160ȱ stuȬ dents.6ȱ Theȱ mereȱ presenceȱ ofȱ aȱ transgenderȱ studentȱ inȱ theȱ bathroom,ȱtheȱSchoolȱDistrictȱargues,ȱinfringesȱuponȱtheȱpriȬ vacyȱ rightsȱ ofȱ otherȱ studentsȱ withȱ whomȱ heȱ orȱ sheȱ doesȱ notȱ shareȱ biologicalȱ anatomy.ȱ Whileȱ thisȱ courtȱ certainlyȱ recogȬ nizesȱ thatȱ theȱ Schoolȱ Districtȱ hasȱ aȱ legitimateȱ interestȱ inȱ enȬ suringȱ bathroomȱ privacyȱ rightsȱ areȱ protected,ȱ thisȱ interestȱ mustȱbeȱweighedȱagainstȱtheȱfactsȱofȱtheȱcaseȱandȱnotȱjustȱexȬ aminedȱinȱtheȱabstract,ȱtoȱdetermineȱwhetherȱthisȱjustificationȱ isȱgenuine.ȱȱ

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
6WeȱnoteȱthatȱtheȱSchoolȱDistrict’sȱrelianceȱuponȱtheȱprivacyȱinterestsȱ ofȱ allȱ ofȱ itsȱ 22,160ȱ studentsȱ isȱ oddȱ givenȱ thatȱ theȱ preliminaryȱ injunctionȱ orderȱonlyȱpertainsȱtoȱAsh,ȱaȱstudentȱatȱoneȱofȱitsȱhighȱschools.ȱManyȱofȱ theȱSchoolȱDistrict’sȱstudentsȱattendȱschoolsȱotherȱthanȱTremperȱandȱareȱ therefore,ȱtotallyȱunaffectedȱbyȱtheȱdistrictȱcourt’sȱorder.

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WhatȱtheȱrecordȱdemonstratesȱhereȱisȱthatȱtheȱSchoolȱDisȬ trict’sȱ privacyȱ argumentȱ isȱ basedȱ uponȱ sheerȱ conjectureȱ andȱ abstraction.ȱForȱnearlyȱsixȱmonths,ȱAshȱusedȱtheȱboys’ȱbathȬ roomȱ whileȱ atȱ schoolȱ andȱ schoolȬsponsoredȱ eventsȱ withoutȱ incidentȱ orȱ complaintȱ fromȱ anotherȱ student.ȱ Inȱ fact,ȱ itȱ wasȱ onlyȱwhenȱaȱteacherȱwitnessedȱAshȱwashingȱhisȱhandsȱinȱtheȱ restroomȱthatȱhisȱbathroomȱusageȱonceȱmoreȱbecameȱanȱissueȱ inȱtheȱSchoolȱDistrict’sȱeyes.ȱAndȱwhileȱatȱoralȱargument,ȱtheȱ SchoolȱDistrictȱassertedȱthatȱitȱhadȱreceivedȱjustȱoneȱcomplaintȱ fromȱaȱparent,ȱthisȱisȱinsufficientȱtoȱsupportȱitsȱpositionȱthatȱ itsȱpolicyȱisȱrequiredȱtoȱprotectȱtheȱprivacyȱrightsȱofȱeachȱandȱ everyȱ student.ȱ Counselȱ forȱ theȱ Schoolȱ Districtȱ citedȱ toȱ Ash’sȱ AmendedȱComplaintȱforȱthisȱassertion.ȱTheȱAmendedȱComȬ plaint,ȱhowever,ȱstatesȱthatȱ“someȱparentsȱandȱotherȱKenoshaȱ residentsȱ beganȱ toȱ speakȱ outȱ inȱ oppositionȱ toȱ Ash’sȱ rightȱ toȱ useȱ theȱ boys’ȱ restrooms.”ȱ Am.ȱComp.ȱ ¶ȱ 77.ȱ Itȱ furtherȱ statesȱ thatȱ severalȱ communityȱ membersȱ spokeȱ atȱ aȱ Schoolȱ Boardȱ meetingȱ andȱ voicedȱ theirȱ oppositionȱ toȱ aȱ policyȱ thatȱ wouldȱ allowȱ transgenderȱ studentsȱ toȱ useȱ genderȬappropriateȱ reȬ strooms.ȱSeeȱid.ȱ(“OneȱparentȱtoldȱtheȱBoardȱthatȱheȱwasȱopȬ posedȱ toȱ permittingȱ transgenderȱ studentsȱ toȱ useȱ genderȬapȬ propriateȱrestroomsȱ…ȱ.”).ȱNonetheless,ȱneitherȱpartyȱhasȱofȬ feredȱanyȱevidenceȱorȱevenȱallegedȱthatȱtheȱSchoolȱDistrictȱhasȱ receivedȱanyȱcomplaintsȱfromȱotherȱstudents.ȱThisȱpolicyȱdoesȱ nothingȱ toȱ protectȱ theȱ privacyȱ rightsȱ ofȱ eachȱ individualȱ stuȬ dentȱvisȬàȬvisȱstudentsȱwhoȱshareȱsimilarȱanatomyȱandȱitȱigȬ noresȱtheȱpracticalȱrealityȱofȱhowȱAsh,ȱasȱaȱtransgenderȱboy,ȱ usesȱtheȱbathroom:ȱbyȱenteringȱaȱstallȱandȱclosingȱtheȱdoor.ȱȱ
Aȱ transgenderȱ student’sȱ presenceȱ inȱ theȱ restroomȱ proȬ videsȱnoȱmoreȱofȱaȱriskȱtoȱotherȱstudents’ȱprivacyȱrightsȱthanȱ theȱpresenceȱofȱanȱoverlyȱcuriousȱstudentȱofȱtheȱsameȱbiologȬ icalȱsexȱwhoȱdecidesȱtoȱsneakȱglancesȱatȱhisȱorȱherȱclassmatesȱ

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performingȱ theirȱ bodilyȱ functions.ȱ Orȱ forȱ thatȱ matter,ȱ anyȱ otherȱstudentȱwhoȱusesȱtheȱbathroomȱatȱtheȱsameȱtime.ȱComȬ monȱ senseȱ tellsȱ usȱ thatȱ theȱ communalȱ restroomȱ isȱ aȱ placeȱ whereȱindividualsȱactȱinȱaȱdiscreetȱmannerȱtoȱprotectȱtheirȱpriȬ vacyȱ andȱ thoseȱ whoȱ haveȱ trueȱ privacyȱ concernsȱ areȱ ableȱ toȱ utilizeȱ aȱ stall.ȱ Nothingȱ inȱ theȱ recordȱ suggestsȱ thatȱ theȱ bathȬ roomsȱatȱTremperȱHighȱSchoolȱareȱparticularlyȱsusceptibleȱtoȱ anȱ intrusionȱ uponȱ anȱ individual’sȱ privacy.ȱ Further,ȱ ifȱ theȱ SchoolȱDistrict’sȱconcernȱisȱthatȱaȱchildȱwillȱbeȱinȱtheȱbathroomȱ withȱanotherȱchildȱwhoȱdoesȱnotȱlookȱanatomicallyȱtheȱsame,ȱ thenȱ itȱ wouldȱ seemȱ thatȱ separateȱ bathroomsȱ alsoȱ wouldȱ beȱ appropriateȱ forȱ preȬpubescentȱ andȱ postȬpubescentȱ childrenȱ whoȱ doȱ notȱ lookȱ alikeȱ anatomically.ȱ Butȱ theȱ Schoolȱ Districtȱ hasȱnotȱdrawnȱthisȱline.ȱTherefore,ȱthisȱcourtȱagreesȱwithȱtheȱ districtȱcourtȱthatȱtheȱSchoolȱDistrict’sȱprivacyȱargumentsȱareȱ insufficientȱ toȱ establishȱ anȱ exceedinglyȱ persuasiveȱ justificaȬ tionȱforȱtheȱclassification.ȱȱ
Additionally,ȱatȱoralȱargument,ȱcounselȱforȱtheȱSchoolȱDisȬ trictȱclarifiedȱthatȱtheȱonlyȱwayȱthatȱAshȱwouldȱbeȱpermittedȱ toȱuseȱtheȱboys’ȱrestroomȱwouldȱbeȱifȱheȱwereȱtoȱpresentȱtheȱ schoolȱwithȱaȱbirthȱcertificateȱthatȱdesignatedȱhisȱsexȱasȱmale.ȱ ButȱitȱisȱimportantȱtoȱkeepȱinȱmindȱthatȱtheȱSchoolȱDistrictȱhasȱ notȱprovidedȱaȱwrittenȱcopyȱofȱtheȱpolicy.ȱNorȱisȱitȱclearȱthatȱ oneȱevenȱexists.ȱAnd,ȱbeforeȱthisȱlitigation,ȱAsh’sȱmotherȱwasȱ neverȱ toldȱ thatȱ sheȱ neededȱ toȱ produceȱ aȱ birthȱ certificate.ȱ InȬ stead,ȱwhenȱsheȱaskedȱtheȱSchoolȱDistrictȱtoȱpermitȱhimȱtoȱuseȱ theȱ boys’ȱ restroom,ȱ theȱ school’sȱ assistantȱ principalȱ toldȱ herȱ thatȱ Ashȱ couldȱ useȱ theȱ boys’ȱ restroomȱ onlyȱ ifȱ hisȱ sexȱ wasȱ changedȱinȱtheȱschool’sȱofficialȱrecords.ȱToȱdoȱso,ȱAshȱwouldȱ needȱ toȱ submitȱ unspecifiedȱ legalȱ orȱ medicalȱ “documentaȬ tion.”ȱ Despiteȱ explainingȱ toȱ theȱ assistantȱ principalȱ thatȱ Ashȱ

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wasȱtooȱyoungȱtoȱhaveȱsexȬreassignmentȱsurgeryȱandȱpresentȬ ingȱ theȱ Schoolȱ Districtȱ withȱ twoȱ lettersȱ fromȱ Ash’sȱ pediatriȬ cian,ȱAshȱwasȱstillȱnotȱallowedȱtoȱuseȱtheȱboys’ȱrestroom.ȱȱ
Further,ȱitȱisȱunclearȱthatȱtheȱsexȱmarkerȱonȱaȱbirthȱcertifiȬ cateȱcanȱevenȱbeȱusedȱasȱaȱtrueȱproxyȱforȱanȱindividual’sȱbioȬ logicalȱsex.ȱTheȱmarkerȱdoesȱnotȱtakeȱintoȱaccountȱanȱindividȬ ual’sȱ chromosomalȱ makeup,ȱ whichȱ isȱ alsoȱ aȱ keyȱ componentȱ ofȱone’sȱbiologicalȱsex.ȱTherefore,ȱone’sȱbirthȱcertificateȱcouldȱ reflectȱ aȱ maleȱ sex,ȱ whileȱ theȱ individual’sȱ chromosomalȱ makeupȱ reflectsȱ another.ȱ Itȱ isȱ alsoȱ unclearȱ whatȱ wouldȱ hapȬ penȱifȱanȱindividualȱisȱbornȱwithȱtheȱexternalȱgenitaliaȱofȱtwoȱ sexes,ȱorȱgenitaliaȱthatȱisȱambiguousȱinȱnature.ȱInȱthoseȱcases,ȱ itȱ isȱ clearȱ thatȱ theȱ markerȱ onȱ theȱ birthȱ certificateȱ wouldȱ notȱ adequatelyȱ accountȱ forȱ orȱ reflectȱ one’sȱ biologicalȱ sex,ȱ whichȱ wouldȱhaveȱtoȱbeȱdeterminedȱbyȱconsideringȱmoreȱthanȱwhatȱ wasȱlistedȱonȱtheȱpaper.ȱ
Moreover,ȱwhileȱitȱisȱtrueȱthatȱinȱWisconsinȱanȱindividualȱ mayȱonlyȱchangeȱhisȱorȱherȱdesignatedȱsexȱonȱaȱbirthȱcertifiȬ cateȱ afterȱ completingȱ aȱ surgicalȱ reassignment,ȱ seeȱ Wis.ȱ Stat.ȱ Ann.ȱ§ȱ69.15(4),ȱthisȱisȱnotȱuniversallyȱtheȱcase.ȱForȱexample,ȱ asȱ Ash’sȱ counselȱ pointedȱ outȱ duringȱ oralȱ argument,ȱ inȱ MinȬ nesota,ȱanȱindividualȱmayȱamendȱhisȱorȱherȱbirthȱcertificateȱtoȱ reflectȱ hisȱ orȱ herȱ genderȱ identityȱ withoutȱ surgicalȱ reassignȬ ment.ȱ Seeȱ Requirementsȱ forȱ documentsȱ submittedȱ toȱ supportȱ theȱ amendmentȱ ofȱ aȱ birthȱ record,ȱ MINNESOTAȱ DEP’Tȱ OFȱ HEALTH,ȱ http://www.health.state.mn.us/divs/chs/osr/reqdocs.html#genderȱ (lastȱvisitedȱMayȱ30,ȱ2017).ȱTherefore,ȱaȱstudentȱwhoȱisȱbornȱ inȱMinnesotaȱandȱbeginsȱhisȱtransitionȱthere,ȱobtainingȱaȱmodȬ ifiedȱbirthȱcertificateȱasȱpartȱofȱtheȱprocess,ȱcouldȱmoveȱtoȱKeȬ noshaȱ andȱ beȱ permittedȱ toȱ useȱ theȱ boys’ȱ restroomȱ inȱ oneȱ ofȱ

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32ȱ

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theȱ Schoolȱ District’sȱ schoolsȱ evenȱ thoughȱ heȱ retainsȱ femaleȱ anatomy.ȱȱ
Additionally,ȱtheȱpolicyȱfailsȱtoȱaccountȱforȱtheȱfactȱthatȱaȱ newȱ studentȱ registeringȱ withȱ theȱ Schoolȱ Districtȱ needȱ notȱ evenȱprovideȱaȱbirthȱcertificate.ȱRather,ȱtheȱSchoolȱDistrictȱreȬ quiresȱthatȱeachȱnewȱstudentȱprovideȱeitherȱaȱbirthȱcertificateȱ orȱ aȱ passport.ȱ Seeȱ Registration,ȱ KENOSHAȱ UNIFIEDȱ SCH.ȱ DIST.,ȱ http://www.kusd.edu/registrationȱ (lastȱ visitedȱ Mayȱ 30,ȱ 2017).ȱ PursuantȱtoȱtheȱUnitedȱStatesȱDepartmentȱofȱState’sȱpolicies,ȱ anȱ individualȱ mayȱ applyȱ forȱ andȱ receiveȱ aȱ passportȱ thatȱ reȬ flectsȱhisȱorȱherȱgenderȱidentityȱbyȱpresentingȱaȱsignedȱmediȬ calȱ certificationȱ fromȱ aȱ physician.ȱ Seeȱ Genderȱ Designationȱ Change,ȱ U.S.ȱ DEP’Tȱ OFȱ STATE,ȱ https://travel.state.gov/conȬ tent/passports/en/passports/information/genȬ der.html#changeȱ(lastȱvisitedȱMayȱ30,ȱ2017).ȱThisȱprocessȱdoesȱ notȱrequireȱthatȱanȱindividualȱhaveȱundergoneȱsexȬreassignȬ mentȱsurgery.ȱTherefore,ȱtheȱSchoolȱDistrict’sȱrelianceȱuponȱaȱ birthȱ certificate’sȱ sexȬmarkerȱ demonstratesȱ theȱ arbitraryȱ naȬ tureȱ ofȱ theȱ policy;ȱ so,ȱ Ashȱ hasȱ metȱ theȱ lowȱ thresholdȱ ofȱ demonstratingȱ aȱ probabilityȱ ofȱ successȱ onȱ hisȱ Equalȱ ProtecȬ tionȱClaim.ȱȱ
4. BalanceȱofȱHarmsȱFavorsȱAshȱ
Havingȱalreadyȱdeterminedȱthatȱtheȱdistrictȱcourtȱdidȱnotȱ errȱinȱfindingȱthatȱAshȱwillȱsufferȱirreparableȱharmȱabsentȱpreȬ liminaryȱ injunctiveȱ relief,ȱ weȱ nowȱ mustȱ lookȱ atȱ whetherȱ grantingȱ preliminaryȱ injunctiveȱ reliefȱ willȱ harmȱ theȱ Schoolȱ Districtȱandȱtheȱpublicȱasȱaȱwhole.ȱOnceȱaȱmovingȱpartyȱhasȱ metȱitsȱburdenȱofȱestablishingȱtheȱthresholdȱrequirementsȱforȱ aȱ preliminaryȱ injunction,ȱ theȱ courtȱ mustȱ balanceȱ theȱ harmsȱ facedȱbyȱbothȱpartiesȱandȱtheȱpublicȱasȱaȱwhole.ȱSeeȱGirlȱScoutsȱ ofȱ Manitouȱ Council,ȱ Inc.ȱ v.ȱ Girlȱ Scoutsȱ ofȱ U.S.ȱ ofȱ Am.,ȱ Inc.,ȱ 549ȱ

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F.3dȱ 1079,ȱ 1100ȱ (7thȱ Cir.ȱ 2008);ȱ seeȱ alsoȱ Turnellȱ v.ȱ CentiMarkȱ Corp.,ȱ796ȱF.3dȱ656,ȱ662ȱ(7thȱCir.ȱ2015).ȱThisȱisȱdoneȱonȱaȱ“slidȬ ingȱscale”ȱmeasuringȱtheȱbalanceȱofȱharmsȱagainstȱtheȱmovingȱ party’sȱ likelihoodȱ ofȱ success.ȱ Turnell,ȱ 796ȱ F.3dȱ atȱ 662.ȱ Theȱ moreȱ likelyȱ heȱ isȱ toȱ succeedȱ onȱ theȱ merits,ȱ theȱ lessȱ theȱ scaleȱ mustȱtipȱinȱhisȱfavor.ȱId.ȱTheȱconverse,ȱhowever,ȱalsoȱisȱtrue:ȱ theȱlessȱlikelyȱheȱisȱtoȱwin,ȱtheȱmoreȱtheȱbalanceȱofȱharmsȱmustȱ weighȱ inȱ hisȱ favorȱ forȱ anȱ injunctionȱ toȱ issue.ȱ Id.ȱ Substantialȱ deferenceȱisȱgivenȱtoȱtheȱdistrictȱcourt’sȱanalysisȱofȱtheȱbalancȬ ingȱofȱharms.ȱId.ȱ
Theȱ Schoolȱ Districtȱ arguesȱ thatȱ theȱ districtȱ courtȱ erredȱ inȱ determiningȱ thatȱ theȱ balanceȱ ofȱ theȱ harmsȱ weighedȱ inȱ favorȱ ofȱgrantingȱtheȱinjunctionȱbecauseȱitȱignoredȱtheȱfactȱthatȱtheȱ harmȱextendsȱtoȱ22,160ȱstudentsȱinȱtheȱSchoolȱDistrictȱwhoseȱ privacyȱrightsȱareȱatȱriskȱbyȱallowingȱaȱtransgenderȱstudentȱtoȱ utilizeȱaȱbathroomȱthatȱdoesȱnotȱcorrespondȱwithȱhisȱbiologiȬ calȱsex.ȱGrantingȱtheȱinjunction,ȱtheȱSchoolȱDistrictȱcontinues,ȱ alsoȱirreparablyȱharmedȱtheseȱstudents’ȱparents,ȱwhoȱareȱnowȱ deniedȱ theȱ rightȱ toȱ directȱ theȱ educationȱ andȱ upbringingȱ ofȱ theirȱ children.ȱ Additionally,ȱ theȱ Schoolȱ Districtȱ assertsȱ thatȱ theȱ injunctionȱ harmsȱ theȱ publicȱ asȱ aȱ whole,ȱ sinceȱ itȱ forcesȱ otherȱschoolȱdistrictsȱnationwideȱtoȱcontemplateȱwhetherȱtheyȱ mustȱchangeȱtheirȱpoliciesȱandȱalterȱtheirȱfacilitiesȱorȱriskȱbeȬ ingȱ foundȱ outȱ ofȱ complianceȱ withȱ Titleȱ IX.ȱ Noncomplianceȱ placesȱ theirȱ federalȱ fundingȱ atȱ risk.ȱ Basedȱ uponȱ thisȱ record,ȱ however,ȱweȱfindȱtheȱSchoolȱDistrict’sȱargumentsȱunpersuaȬ sive.ȱȱ
TheȱSchoolȱDistrictȱhasȱnotȱdemonstratedȱthatȱitȱwillȱsufferȱ anyȱharmȱfromȱhavingȱtoȱcomplyȱwithȱtheȱdistrictȱcourt’sȱpreȬ liminaryȱinjunctionȱorder.ȱNorȱhasȱitȱestablishedȱthatȱtheȱpubȬ licȱasȱaȱwholeȱwillȱsufferȱharm.ȱAsȱnotedȱabove,ȱbeforeȱseekingȱ

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No.ȱ16Ȭ3522ȱ

injunctiveȱrelief,ȱAshȱusedȱtheȱbathroomȱforȱnearlyȱsixȱmonthsȱ withoutȱincident.ȱTheȱSchoolȱDistrictȱhasȱnotȱproducedȱanyȱevȬ idenceȱ thatȱ anyȱ studentsȱ haveȱ everȱ complainedȱ aboutȱ Ash’sȱ presenceȱinȱtheȱboys’ȱrestroom.ȱNorȱhaveȱtheyȱdemonstratedȱ thatȱ Ash’sȱ presenceȱ hasȱ actuallyȱ causedȱ anȱ invasionȱ ofȱ anyȱ otherȱstudent’sȱprivacy.ȱAndȱwhileȱtheȱSchoolȱDistrictȱclaimsȱ thatȱpreliminaryȱinjunctiveȱreliefȱinfringesȱuponȱparents’ȱabilȬ ityȱ toȱdirectȱtheȱ educationȱofȱtheirȱ children,ȱ itȱ offersȱ noȱ eviȬ denceȱthatȱaȱparentȱhasȱeverȱassertedȱthisȱright.ȱTheseȱclaimsȱ areȱallȱspeculative.ȱ
Weȱareȱfurtherȱconvincedȱthatȱtheȱdistrictȱcourtȱdidȱnotȱerrȱ inȱfindingȱthatȱthisȱbalanceȱweighedȱinȱfavorȱofȱgrantingȱtheȱ injunctionȱ whenȱ consideringȱ theȱ statementsȱ madeȱ byȱ amici,ȱ whoȱareȱschoolȱadministratorsȱfromȱtwentyȬoneȱstatesȱandȱtheȱ Districtȱ ofȱ Columbia.ȱ Together,ȱ theseȱ administratorsȱ areȱ reȬ sponsibleȱ forȱ educatingȱ approximatelyȱ 1.4ȱ millionȱ students.ȱ Eachȱ administratorȱ hasȱ experienceȱ implementingȱ inclusiveȱ bathroomȱ policiesȱ inȱ theirȱ respectiveȱ schools,ȱ andȱ eachȱ hasȱ grappledȱwithȱtheȱsameȱprivacyȱconcernsȱthatȱtheȱSchoolȱDisȬ trictȱ raisesȱ here.ȱ Theseȱ administratorsȱ uniformlyȱ agreeȱ thatȱ theȱfrequentlyȬraisedȱandȱhypotheticalȱconcernsȱaboutȱaȱpolȬ icyȱ thatȱ permitsȱ aȱ studentȱ toȱ utilizeȱ aȱ bathroomȱ consistentȱ withȱhisȱorȱherȱgenderȱidentityȱhaveȱsimplyȱnotȱmaterialized.ȱ Rather,ȱinȱtheirȱcombinedȱexperience,ȱallȱstudents’ȱneedsȱareȱ bestȱservedȱwhenȱstudentsȱareȱtreatedȱequally.ȱȱ
AlthoughȱtheȱSchoolȱDistrictȱarguesȱthatȱimplementingȱanȱ inclusiveȱpolicyȱwillȱresultȱinȱtheȱdemiseȱofȱgenderȬsegregatedȱ facilitiesȱ inȱ schools,ȱ theȱ amiciȱ noteȱ thatȱ thisȱ hasȱ notȱ beenȱ theȱ case.ȱ Inȱ fact,ȱ theseȱ administratorsȱ haveȱ foundȱ thatȱ allowingȱ transgenderȱstudentsȱtoȱuseȱfacilitiesȱthatȱalignȱwithȱtheirȱgenȬ

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derȱidentityȱhasȱactuallyȱreinforcedȱtheȱconceptȱofȱseparateȱfaȬ cilitiesȱforȱboysȱandȱgirls.ȱWhenȱconsideringȱtheȱexperienceȱofȱ thisȱgroupȱinȱlightȱofȱtheȱrecordȱhere,ȱwhichȱisȱvirtuallyȱdevoidȱ ofȱanyȱ complaintsȱorȱharmȱcausedȱtoȱ theȱSchoolȱ District,ȱ itsȱ students,ȱorȱtheȱpublicȱasȱaȱwhole,ȱitȱisȱclearȱthatȱtheȱdistrictȱ courtȱdidȱnotȱerrȱinȱbalancingȱtheȱharms.ȱȱ
III.ȱCONCLUSIONȱ
Appellants’ȱ motionȱ toȱ haveȱ thisȱ courtȱ assertȱ pendentȱ apȬ pellantȱ jurisdictionȱ overȱ theȱ districtȱ court’sȱ denialȱ ofȱ AppelȬ lants’ȱMotionȱtoȱDismissȱisȱDENIED.ȱTheȱdistrictȱcourt’sȱorderȱ grantingȱtheȱAppellee’sȱmotionȱforȱaȱpreliminaryȱinjunctionȱisȱ AFFIRMED.ȱ

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UNITEDȱSTATESȱCOURTȱOFȱAPPEALSȱFORȱTHEȱSEVENTHȱCIRCUIT

EverettȱMcKinleyȱDirksenȱUnitedȱStatesȱCourthouse ȱRoomȱ2722ȱȬȱ219ȱS.ȱDearbornȱStreet ȱChicago,ȱIllinoisȱ60604

OfficeȱofȱtheȱClerk Phone:ȱ(312)ȱ435Ȭ5850 www.ca7.uscourts.gov

Mayȱ30,ȱ2017

FINALȱJUDGMENT

Before:

ȱDIANEȱP.ȱWOOD,ȱChiefȱJudge ȱILANAȱDIAMONDȱROVNER,ȱCircuitȱJudge ȱANNȱCLAIREȱWILLIAMS,ȱCircuitȱJudge

ASHTONȱWHITAKER,ȱbyȱhisȱmotherȱandȱnextȱfriend,ȱMelissaȱWhitaker, PlaintiffȱȬȱAppellee

No.ȱ16Ȭ3522

v.
KENOSHAȱUNIFIEDȱSCHOOLȱDISTRICTȱNO.ȱ1ȱBOARDȱOF EDUCATION,ȱetȱal., DefendantsȱȬȱAppellants

ȱOriginatingȱCaseȱInformation:

DistrictȱCourtȱNo:ȱ2:16ȬcvȬ00943ȬPP EasternȱDistrictȱofȱWisconsin DistrictȱJudgeȱPamelaȱPepper

TheȱdistrictȱcourtȇsȱorderȱgrantingȱtheȱAppelleeȇsȱmotionȱforȱaȱpreliminaryȱinjunctionȱis AFFIRMED.
Theȱaboveȱisȱinȱaccordanceȱwithȱtheȱdecisionȱofȱthisȱcourtȱenteredȱonȱthisȱdate.ȱCosts shouldȱbeȱassessedȱagainstȱtheȱAppellants.ȱ

formȱname:ȱc7_FinalJudgment(formȱID:ȱ132)

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

BILL OF COSTS June 21, 2017 Taxed in Favor of: Appellee Ashton Whitaker

ASHTON WHITAKER, by his mother and next friend, Melissa Whitaker, Plaintiff - Appellee

No. 16-3522

v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, et al., Defendants - Appellants

Originating Case Information:

District Court No: 2:16-cv-00943-PP Eastern District of Wisconsin District Judge Pamela Pepper

The mandate or agency closing letter issued in this cause on June 21, 2017. BILL OF COSTS issued in the amount of: $653.11.
Cost of Each Item

1.

For docketing a case on appeal or review or docketing any other proceeding:

___________________________

__________

2.

For reproduction of any record or paper, per page: _______________________________________

__________

Total Cost Each Item
__________
__________

3. For reproduction of briefs:

653.11

653.11

TOTAL:

653.11

form name: c7_BillOfCosts(form ID: 140)

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Case: 16-3522 Document: 00713017991

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

NOTICE OF ISSUANCE OF MANDATE

June 21, 2017

To:

Stephen C. Dries

UNITED STATES DISTRICT COURT

Eastern District of Wisconsin

Milwaukee , WI 53202-0000

ASHTON WHITAKER, by his mother and next friend, Melissa Whitaker, Plaintiff - Appellee

No. 16-3522

v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, et al., Defendants - Appellants

Originating Case Information:

District Court No: 2:16-cv-00943-PP Eastern District of Wisconsin District Judge Pamela Pepper

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

AMOUNT OF BILL OF COSTS (do not include the $):

653.11

DATE OF MANDATE OR AGENCY CLOSING LETTER ISSUANCE:

06/21/2017

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Case: 16-3522 Document: 00713017991

Filed: 06/21/2017 Pages: 2 (39 of 39)

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

____6_/_2_1_/2_0_1_7______________

____/_s_/_L_i_s_a_M__._F_o_r_s_e_th_________________

form name: c7_Mandate(form ID: 135)
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ASHTON WHITAKER,

Plaintiff,

v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION,

Civ. Action No. 2:16-cv-00943-PP Judge Pamela Pepper

Defendant.

CONSENT JUDGMENT 1. Whereas, Plaintiff Ashton Whitaker (“Plaintiff”)1 filed a Complaint [Dkt. No. 1] on July 20, 2016 and Amended Complaint [Dkt. No. 9] on August 15, 2016 against Defendant Kenosha Unified School District No. 1 Board of Education (“Defendant”),2 bringing claims under Title IX of the Education Amendments of 1972 (“Title IX”) and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution challenging, inter alia, Defendant’s alleged policies or practices denying Plaintiff, a transgender boy, the ability to use restrooms corresponding to his male gender identity at school and during school-sponsored activities, Defendant’s alleged monitoring of Plaintiff’s restroom usage, and other alleged actions

1 Plaintiff, who was a minor at the time this action commenced, originally filed this lawsuit through his mother and next friend, Melissa Whitaker. On September 5, 2017, following Plaintiff’s 18th birthday, the Court issued an order granting Plaintiff’s unopposed motion to amend the case caption to permit Plaintiff to pursue this action in his own capacity [Dkt. No. 74]. 2 The Amended Complaint also named Sue Savaglio-Jarvis, in her official capacity as Superintendent of the Kenosha Unified School District No. 1, as a defendant. On August 11, 2017, the Parties filed a joint stipulation to dismiss Ms. Savaglio-Jarvis [Dkt. No. 72].
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by Defendant in which Plaintiff was treated differently from other male students because of his gender identity;
2. Whereas Defendant denied the majority of the allegations in the Amended Complaint;
3. Whereas, Plaintiff’s Amended Complaint sought, inter alia, preliminary and permanent injunctive relief, compensatory damages sufficient to compensate Plaintiff for the physical, emotional, and educational injuries he suffered as a result of Defendant’s actions, and compensation for his reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988;
4. Whereas, this Court entered an order denying Defendant’s motion to dismiss Plaintiff’s claims on September 21, 2016, as amended on September 26, 2016, and the U.S. Court of Appeals for the Seventh Circuit denied Defendant’s motion for interlocutory review of this Court’s denial of Defendant’s motion to dismiss on November 14, 2016 in Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker, 841 F.3d 730, 732 (7th Cir. 2016);
5. Whereas, on September 22, 2016, this Court entered a preliminary injunction [Dkt. No. 33] enjoining Defendant from “(1) denying [Plaintiff] access to the boys’ restrooms; (2) enforcing any policy, written or unwritten, against the plaintiff that would prevent him from using the boys restroom during any time he is on the school premises or attending schoolsponsored events; (3) disciplining the plaintiff for using the boys restroom during any time that he is on the school premises or attending school-sponsored events; and (4) monitoring or surveilling in any way [Plaintiff’s] restroom use;”
6. Whereas, on May 30, 2017, the U.S. Court of Appeals for the Seventh Circuit issued an opinion and order affirming the preliminary injunction entered by this Court and denying Defendant’s motion for exercise of pendent appellate jurisdiction over this Court’s
2 Case 2:16-cv-00943-PP Filed 01/22/18 Page 2 of 6 Document 91-1

denial of Defendant’s motion to dismiss, holding that Plaintiff was likely to succeed on the merits of his claims under both Title IX and the Equal Protection Clause, that Plaintiff would likely have suffered irreparable harm without the injunction and had no adequate remedies at law without the injunction, and that the balance of harms favored Plaintiff, Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044-55 (7th Cir. 2017);
7. Whereas, Plaintiff graduated from Tremper High School in the Kenosha Unified School District on May 31, 2017, and anticipates returning to the school district’s campuses or offices as an alumnus and community member;
8. Whereas, on August 29, 2017, Defendant filed a petition for writ of certiorari seeking review of the Seventh Circuit’s May 30, 2017 order with the U.S. Supreme Court, Plaintiff’s response to that petition is due on January 26, 2018, and the Supreme Court has not yet ruled on that petition;
9. Whereas, the Parties expressly understand and agree that this Consent Judgment is a compromise of disputed claims and that it shall not be construed as, or be deemed to be, evidence of any admission or concession of any fault or liability or damage whatsoever on the part of the Defendant;
10. Whereas, the Parties desire to settle the issues raised by Plaintiff’s Amended Complaint and subsequent proceedings without the necessity of further litigation; and
11. Whereas, the Parties have reached a settlement agreement and consent to entry of the following final and binding consent judgment as dispositive of all issues raised in this matter.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: A. On or before the date the Parties file this Consent Judgment with the Court,
Defendant shall compensate Plaintiff in the amount of $800,000, in full and final satisfaction of
3 Case 2:16-cv-00943-PP Filed 01/22/18 Page 3 of 6 Document 91-1

his claims for compensatory damages and reasonable attorneys’ fees and costs. A portion of the monetary award shall be used to fund future periodic payments to the Plaintiff as set forth in a separately executed periodic payment agreement (in the amount stipulated in that agreement), the terms of which are incorporated by reference in this Consent Judgment. The remainder of the monetary award will be paid to Plaintiff in a lump-sum payment.
B. Defendant, including its current and future board members, administrators, employees, and all other persons within the scope of Federal Rule of Civil Procedure 65 (Defendant’s officers, agents, servants, employees, and attorneys), is permanently enjoined from:
1. taking any action barring or restricting Ashton Whitaker from accessing, entering, or using male-designated restrooms available to male visitors or alumni at any campus, office, or facility owned or operated by Defendant;
2. imposing terms and conditions on Ashton Whitaker’s use of maledesignated restrooms that differ from those imposed on other male visitors or alumni;
3. monitoring Ashton Whitaker’s use of male-designated restrooms available to male visitors or alumni at any campus, office, or facility owned or operated by Defendant in a manner different from other male visitors or alumni; and
4. retaliating against Plaintiff or his immediate family members in any manner, including with respect to the terms and conditions of Melissa Whitaker’s employment with Defendant.
C. No later than 15 calendar days after the Court’s entry of this Consent Judgment, Defendant will notify all of its current board members, district-level administrators, and school-
4 Case 2:16-cv-00943-PP Filed 01/22/18 Page 4 of 6 Document 91-1

level principals and assistant principals of the terms of the permanent injunction, providing a copy of the consent judgment with such notice, and, for at least the three-year period following entry of this Consent Judgment, will similarly notify all new board members, district-level administrators, and school-level principals of the terms of the permanent injunction on or before each such individual’s first date of service with Defendant.
D. Defendant will withdraw its pending petition for writ of certiorari before the United States Supreme Court within one day of the date this Consent Judgment is filed by the Parties.
E. All other pending deadlines and motions in this action are hereby vacated. F. This Consent Judgment shall remain binding on Defendant for a period of 10 years from the date of filing or unless and until modified by the Court on motion with proper cause under Federal Rule of Civil Procedure 60. G. This Court retains jurisdiction of this action and the Parties for purposes of enforcement, interpretation, or modification of this Consent Judgment for a period of 10 years from the date of filing.
SO ORDERED, this _____ day of ______________, 2018.
______________________________ U.S. District Judge
The following signatures of counsel indicate the Parties’ consent to the form and content of this Consent Judgment:
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Case 2:16-cv-00943-PP Filed 01/22/18 Page 6 of 6 Document 91-1

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ASHTON WHITAKER, Plaintiff,
v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION,
Defendant.

Case No. 16-cv-943-pp

ORDER GRANTING PARTIES’ JOINT MOTION TO APPROVE CONSENT JUDGMENT (DKT. NO. 91), DIRECTING CLERK’S OFFICE TO CLOSE THE
CASE FOR ADMINISTRATIVE PURPOSES, VACATING ALL DEADLINES, AND DENYING AS MOOT ALL PENDING MOTIONS (DKT. NOS. 75, 84)

On December 27, 2017, the plaintiff notified the court in writing that the parties had reached a settlement. Dkt. No. 90. The next day, the court issued a text-only order, requiring that, by January 29, 2018, the parties must file either a joint motion for approval of the consent judgment or a status report indicating why they hadn’t filed such a motion. On January 22, 2018, the parties filed a joint motion asking the court to approve and enter their proposed consent judgment (dkt. no. 91-1) and to vacate all pending deadlines and motions. Dkt. No. 91.
The court GRANTS the joint motion to approve consent judgment. Dkt. No. 91. The court will sign and docket the consent judgment (dkt. no. 91-1) as a separate docket entry. The court ORDERS that once the consent judgment has been docketed, the clerk’s office shall administratively close the case. The
1 Case 2:16-cv-00943-PP Filed 01/23/18 Page 1 of 2 Document 92

court VACATES all pending deadlines, and DENIES AS MOOT the plaintiff’s motion to compel discovery (dkt. no. 75) and the defendants’ motion for judgment on the pleadings (dkt. no. 84).
Dated in Milwaukee, Wisconsin this 23rd day of January, 2018. BY THE COURT: _____________________________________ HON. PAMELA PEPPER United States District Judge
2 Case 2:16-cv-00943-PP Filed 01/23/18 Page 2 of 2 Document 92

 
 ATTYOPEN,CLOSED,PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:16−cv−00943−PP

Whitaker v. Kenosha Unified School District No 1 Board of Education Assigned to: Judge Pamela Pepper Case in other court: 16−03522
USCA: Kenosha Unified School District; 9−23−00016, 16−03522 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/19/2016 Date Terminated: 01/23/2018 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Ashton Whitaker

represented by Alexa Milton Relman Dane & Colfax PLLC 1225 19th St NW − Ste 600 Washington, DC 20036 202−728−1888 Fax: 202−728−0848 Email: amilton@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Pennington Transgender Law Center 1629 Telegraph Ave − Ste 400 PO Box 70976 Oakland, CA 94612 415−865−0176 Fax: 877−847−1278 TERMINATED: 07/10/2017 LEAD ATTORNEY

Ilona Turner Transgender Law Center 1629 Telegraph Ave − Ste 400 PO Box 70976 Oakland, CA 94612 415−865−0176 Fax: 877−847−1278 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G Allen Relman Dane & Colfax PLLC 1225 19th St NW − Ste 600 Washington, DC 20036 202−728−1888 Fax: 202−728−0848 Email: mallen@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-943

Robert Theine Pledl McNally Peterson SC 1233 N Mayfair Rd − Ste 200 Milwaukee, WI 53226 414−257−3399 Fax: 414−257−3223 Email: rpledl@mcpetelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/31/2018 10:19 PM CDT 1 of 11

Sasha J Buchert Transgender Law Center 1629 Telegraph Ave − Ste 400 PO Box 70976 Oakland, CA 94612 415−865−0176 Fax: 877−847−1278 TERMINATED: 07/10/2017 LEAD ATTORNEY
Sasha Samberg−Champion Relman Dane & Colfax PLLC 1225 19th St NW − Ste 600 Washington, DC 20036 202−728−1888 Fax: 202−728−0848 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shawn Thomas Meerkamper Transgender Law Center 1629 Telegraph Ave − Ste 400 PO Box 70976 Oakland, CA 94612 510−587−9696 Fax: 510−587−9699 Email: shawn@transgenderlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D Friedman Relman Dane & Colfax PLLC 1225 19th St NW − Ste 600 Washington, DC 20036 202−728−1888 Fax: 202−728−0848 Email: rfriedman@relmanlaw.com TERMINATED: 07/21/2017
Joseph J. Wardenski Relman Dane & Colfax PLLC 1225 19th St NW − Ste 600 Washington, DC 20036 202−728−1888 Fax: 202−728−0848 Email: jwardenski@relmanlaw.com ATTORNEY TO BE NOTICED

V.
Defendant
Kenosha Unified School District No 1 Board of Education

represented by Aaron J Graf Mallery & Zimmerman SC 731 N Jackson St − Ste 900 Milwaukee, WI 53202−4697 414−727−6279 Email: agraf@mzmilw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan E Sacks Mallery & Zimmerman SC 731 N Jackson St − Ste 900
Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 2 of 11

Defendant
Sue Savaglio−Jarvis TERMINATED: 08/11/2017

Milwaukee, WI 53202−4697 414−271−2424 Fax: 414−271−8678 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald S Stadler Mallery & Zimmerman SC 731 N Jackson St − Ste 900 Milwaukee, WI 53202−4697 414−271−2424 Fax: 414−271−8678 Email: rstadler@mzmilw.com ATTORNEY TO BE NOTICED
represented by Aaron J Graf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan E Sacks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald S Stadler (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/19/2016
07/19/2016 07/19/2016 07/20/2016
07/20/2016
07/20/2016 07/21/2016 07/27/2016 08/03/2016

# Docket Text
1 COMPLAINT against All Defendants by A. W., M. W.. ( Filing Fee PAID $400 receipt number 0757−2383987) (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Wardenski, Joseph)
2 DISCLOSURE Statement by All Plaintiffs. (Wardenski, Joseph)
3 DISCLOSURE Statement by All Plaintiffs. This document and/or certain attachments are SEALED and only viewable by permission of the court(Wardenski, Joseph)
NOTICE Regarding assignment of this matter to Judge Rudolph T Randa ;Consent/refusal forms for Magistrate Judge Joseph to be filed within 21 days;the consent/refusal form is available on our website (jcl)
Case Opening Modification(s); The following modification(s) have been made to your case entry: One or more party names have been modified − please remember to follow the Party Name Guidelines found on our website. The attached summons cannot be issued electronically in its current format. Please follow the summons instructions and resubmit the summons using the event Request for Issuance of Summons which is found under the heading other documents. Please refer to the summons instructions and the party name guidelines found in the user manual for further guidance. (blr)
4 REQUEST for Issuance of Summons by A W (Wardenski, Joseph)
Summons Issued as to Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis. (blr)
5 SUMMONS Returned Executed by A W. All Defendants. (Wardenski, Joseph)
Due to the unavailability of Judge Rudolph T. Randa, this case has been reassigned to Magistrate Judge David E Jones. Consent/refusal forms for Magistrate Judge David E. Jones to be filed within 21 days. The consent/refusal form is available at the court's web site: www.wied.uscourts.gov. (blr)

Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 3 of 11

08/03/2016 6 Refusal to Jurisdiction by US Magistrate Judge by A W. (Wardenski, Joseph)

08/03/2016

7 MOTION for Leave to File Complaint without Redactions by A W. (Wardenski, Joseph)

08/04/2016

Case Reassigned to Judge Pamela Pepper. Magistrate Judge David E Jones no longer assigned to the case due to non−consent. (amb)

08/10/2016

8 ORDER signed by Judge Pamela Pepper on 8/10/2016 GRANTING 7 Plaintiff's motion for leave to re−file complaint without redactions. Please refer to the order for additional details. (cc: all counsel) (pwm)

08/15/2016

9 INCORRECT DOCUMENT ATTACHED. SEE 12 AMENDED COMPLAINT by Plaintiff ASHTON WHITAKER, a minor, by his mother and next friend, MELISSA WHITAKER, against Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis filed by A W.(Wardenski, Joseph) Modified on 8/16/2016 (amb).

08/15/2016

10 MOTION for Preliminary Injunction by A W. (Attachments: # 1 Exhibit 1 − Declaration of Ashton Whitaker, # 2 Exhibit 2 − Declaration of Dr. Stephanie L. Budge, Ph.D., # 3 Exhibit 3 − Declaration of Dr. R. Nicholas Gorton, M.D., amended exhibit 4 filed at 13 #(4) Exhibit 4 − Declaration of Melissa Whitaker, # 5 Exhibit 5 − Declaration of Jenifer McGuire, Ph.D., # 6 Exhibit 6 − U.S. Dep't of Educ. & U.S. Dep't of Justice, Dear Colleague Letter on Transgender Students (May 13, 2016), # 7 Exhibit 7 − Declaration of Tim Kenney, # 8 Exhibit 8 − Declaration of Bryan Davis, Ph.D., # 9 Exhibit 9 − Declaration of Judy Chiasson, Ph.D., # 10 Exhibit 10 − U.S. Dep't of Educ., Example of Policies & Emerging Practices for Supporting Transgender Students (May 2016))(Wardenski, Joseph) Modified on 8/16/2016 (amb).

08/15/2016 11 BRIEF in Support filed by A W re 10 MOTION for Preliminary Injunction . (Wardenski, Joseph)

08/15/2016

12 AMENDED COMPLAINT by Plaintiff ASHTON WHITAKER, a minor, by his mother and next friend, MELISSA WHITAKER (CORRECTED DOCUMENT), against Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis filed by A W. (Attachments: # 1 Letter re: corrected document)(Wardenski, Joseph)

08/15/2016 13 AMENDED DOCUMENT by Ashton Whitaker. Declaration of Melissa Whitaker with exhibits (Dkt No. 10−4) (Wardenski, Joseph)

08/16/2016 14 MOTION to Dismiss the Amended Complaint by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis. (Stadler, Ronald)

08/16/2016

15 BRIEF in Support filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis re 14 MOTION to Dismiss the Amended Complaint . (Stadler, Ronald)

08/17/2016

NOTICE of Hearing: The court will hold a status conference on Friday, 8/19/2016 at 9:00 AM by telephone before Judge Pamela Pepper. The parties may appear by calling the court's conference line at 888−557−8511 and using the access code 4893665#. (cc: all counsel)(pwm)

08/19/2016

16 Court Minutes from the status conference held on 8/19/2016 before Judge Pamela Pepper. The court scheduled oral argument on 9/6/2016 at 3:30 PM on 10 the Plaintiff's Motion for Preliminary Injunction and 14 the Defendants' Motion to Dismiss. Refer to the order for briefing schedule. (cc: all counsel)(pwm) (Entered: 08/23/2016)

08/26/2016

17 BRIEF in Opposition filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis re 10 MOTION for Preliminary Injunction . (Stadler, Ronald)

08/26/2016

18 AFFIDAVIT of Ronald S. Stadler . (Attachments: # 1 Exhibit Letter, # 2 Exhibit Letter, # 3 Exhibit Complaint filed by Plaintiff, # 4 Exhibit Enrollment Data, # 5 Exhibit Preliminary Injunction Order, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Stadler, Ronald)

08/26/2016

19 BRIEF in Opposition filed by Ashton Whitaker re 14 MOTION to Dismiss the Amended Complaint . (Attachments: # 1 Exhibit A − Mem. Op., Carcano v. McCrory (M.D.N.C. Aug. 26, 2016))(Wardenski, Joseph)

Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 4 of 11

08/26/2016

20 APPENDIX by Ashton Whitaker to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss [Dkt. No. 19]. (Attachments: # 1 Exhibit 1 − Hively v. Ivy Tech Community College, # 2 Exhibit 2 − Lusardi v. McHugh, # 3 Exhibit 3 − Rumble v. Fairview Health Services, # 4 Exhibit 4 − Texas v. United States)(Wardenski, Joseph)

08/31/2016

21 REPLY BRIEF in Support filed by Ashton Whitaker re 10 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit A − Carcano v. McCrory (E.D.N.C. Aug. 26, 2016), # 2 Exhibit B − Kastl v. Maricopy Cty. Cmty. Coll. Dist. (D. Ariz. 2004), # 3 Exhibit C − Shorewood School District Nondiscrimination Guidelines, # 4 Exhibit D − Monona Grove School District Nondiscrimination Guidelines, # 5 Exhibit E − Middleton−Cross Plains Area School District Nondiscrimination Guidelines, # 6 Exhibit F − Menasha Joint School District Nondiscrimination Policy, # 7 Exhibit G − KUSD Registration Information, # 8 Exhibit H − KUSD Student Enrollment Form, # 9 Exhibit I − U.S. Dep't of Justice & U.S. Dep't of Educ., Dear Colleague Letter on Student Enrollment Procedures)(Wardenski, Joseph)

08/31/2016 22 REPLY BRIEF in Support filed by All Defendants re 14 MOTION to Dismiss the Amended Complaint . (Attachments: # 1 Exhibit unpublished cases)(Stadler, Ronald)

09/06/2016

26 Court Minutes from the oral argument hearing on 9/6/2016 re the 10 Plaintiffs' Motion for Preliminary Injunction and 14 Defendant's Motion to Dismiss. The court scheduled a hearing on 9/19/16 at 3:30 PM by telephone for the oral decision on the Motion to Dismiss. Any party wishing to appear by phone may do so by calling the court's conference line at 888−557−8511 and using the access code 4893665#. (cc: all counsel)(pwm) (Entered: 09/13/2016)

09/09/2016

23 NOTICE by Ashton Whitaker of Supplemental Authority (Attachments: # 1 Exhibit A − Letter from U.S. Senators to U.S. Secretary of Education John King (May 2, 2016), # 2 Exhibit B − Student Non−Discrimination Act of 2015, S. 439 (114th Cong. 2015))(Wardenski, Joseph)

09/12/2016 24 DISREGARD. REFER TO 25 . RESPONSE filed by All Defendants re 23 Notice, of Supplemental Authority (Stadler, Ronald) Modified on 9/15/2016 (amb).

09/13/2016

Set hearing on Motion to Dismiss on 9/19/2016 at 3:30 PM by telephone before Judge Pamela Pepper. (pwm)

09/13/2016

NOTICE of Electronic Filing Error re 24 Response (Non−Motion) filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis ; Exhibit A should have been filed as an attachment. This document needs to be re−filed; Please refer to the policies and procedures for electronic case filing and the user manual found at www.wied.uscourts.gov (amb)

09/13/2016 25 RESPONSE filed by All Defendants re 23 Notice, of Supplemental Authority (Attachments: # 1 Exhibit)(Stadler, Ronald)

09/19/2016

Set/Reset Hearings: 10 Motion for Preliminary Injunction Hearing set for 9/20/2016 01:00 PM in Courtroom 225, 517 E. Wisconsin Ave., Milwaukee, WI 53202 before Judge Pamela Pepper. Parties wishing to appear by phone may do so by calling the courts conference line at 888−557−8511 and using the access code 4893665#. (kgw)

09/19/2016

28 Court Minutes for proceedings held on 9/19/2016 before Judge Pamela Pepper: RE 14 Oral Decision on MOTION to Dismiss the Amended Complaint filed by Kenosha Unified School District No 1 Board of Education and Sue Savaglio−Jarvis. (kgw) (Entered: 09/21/2016)

09/20/2016 27 PROPOSED Proposed Order Denying Motion to Dismiss filed by All Defendants. (Stadler, Ronald)

09/20/2016 31 Court Minutes from the Oral Argument hearing on 9/20/2016 before Judge Pamela Pepper on the Motion for Preliminary Injunction. (pwm) (Entered: 09/22/2016)

09/21/2016 29 ORDER signed by Judge Pamela Pepper on 9/21/2016 DENYING 14 Defendants' Rule 12(b)(6) Motion to Dismiss the Amended Complaint. (cc: all counsel)(pwm)

09/22/2016

30 Rule 7(h) Expedited Non−Dispositive MOTION for Reconsideration of Certification of Order Denying Motion to Dismiss for Interlocutory Appeal by Ashton Whitaker. (Wardenski, Joseph)

Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 5 of 11

09/22/2016 09/22/2016
09/23/2016 09/25/2016 09/25/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/27/2016 09/27/2016 09/28/2016 09/29/2016
10/03/2016

32 BRIEF filed by Ashton Whitaker Opposing Defendants' Request for Preliminary Injunction Bond. (Wardenski, Joseph)
33 DECISION AND ORDER signed by Judge Pamela Pepper on 9/22/2016 GRANTING IN PART 10 Plaintiff's Motion for Preliminary Injunction. The court ORDERS that defendants are ENJOINED from (1) denying plaintiff access to the boys' restrooms; (2) enforcing any policy, written or unwritten, against the plaintiff that would prevent him from using the boys' restroom during any time he is on the school premises or attending school−sponsored events; (3) disciplining plaintiff for using the boys' restroom during any time that he is on the school premises or attending school−sponsored events; and (4) monitoring or surveilling in any way plaintiff's restroom use. The court DENIES the defendants' request that the court require the plaintiff to post a bond under Rule 65(c). (cc: all counsel) (pwm)
34 NOTICE OF APPEAL as to 33 Order on Motion for Preliminary Injunction,,, by All Defendants. Filing Fee PAID $505, receipt number 0757−2429876 (cc: all counsel) (Stadler, Ronald)
35 AMENDED ORDER signed by Judge Pamela Pepper on 9/24/2016 denying Defendants' Rule 12(b)(6) Motion to Dismiss the Amended Complaint (Dkt. No. 14). (cc: all counsel)(pwm)
36 ORDER signed by Judge Pamela Pepper on 9/24/2016 GRANTING 30 Plaintiffs' Civil L.R. 7(h) expedited non−dispositive motion to reconsider certification for interlocutory appeal of order denying motion to dismiss and vacating certification. (cc: all counsel) (pwm)
37 Attorney Cover Letter re: 34 Notice of Appeal (Attachments: # 1 docket sheet)(dl)
38 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 34 Notice of Appeal (dl)
39 DESIGNATION of Record on Appeal by Ashton Whitaker re 34 Notice of Appeal to include additional document (Dkt. No. 23). (Wardenski, Joseph)
40 USCA Case Number 16−3522 re: 34 Notice of Appeal filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis. (lmf)
41 LETTER from Ronald S. Stadler . (Stadler, Ronald)
42 Rule 7(h) Expedited Non−Dispositive MOTION for Relief from the Order Granting Plaintiff's Motion to Reconsider Certification for Interlocutory Appeal of Order Denying Motion to Dismiss, and Vacating Certification. (DKT. NO. 36) by All Defendants. (Stadler, Ronald)
43 RESPONSE to Motion filed by Ashton Whitaker re 42 Rule 7(h) Expedited Non−Dispositive MOTION for Relief from the Order Granting Plaintiff's Motion to Reconsider Certification for Interlocutory Appeal of Order Denying Motion to Dismiss, and Vacating Certification. (DKT. NO. 36) . (Wardenski, Joseph)
44 Rule 7(h) Expedited Non−Dispositive MOTION to Stay Preliminary Injunction (DKT. No. 33) Pending Appeal by All Defendants. (Stadler, Ronald)
45 TRANSCRIPT of ORAL DECISION ON MOTION TO DISMISS held on 9/19/2016 before Judge Pamela Pepper Court Reporter/Transcriber John Schindhelm, Contact at WWW.JOHNSCHINDHELM.COM to order directly... Or. Transcripts may be purchased using the Transcript Order Form found on our website or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov Redaction Statement due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/1/2017. (Schindhelm, John)
46 ORDER signed by Judge Pamela Pepper on 10/3/2016 DENYING 44 Rule 7(h) Motion to Stay Preliminary Injunction (Dkt. No. 33) Pending Appeal. (cc: all counsel) (pwm)

Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 6 of 11

10/03/2016 10/04/2016 10/05/2016
10/07/2016
10/07/2016
10/14/2016 10/18/2016 10/21/2016 11/14/2016 12/13/2016

47 ORDER signed by Judge Pamela Pepper on 10/3/2016 DENYING 42 Defendants' Rule 7(h) Motion for Relief from the Order (Dkt. No. 36) Granting Plaintiff's Motion to Reconsider Certification of Interlocutory Appeal of Order Denying Motion to Dismiss and Vacating Certification. (cc: all counsel)(pwm)
48 MOTION to set Rule 16 scheduling conference by Ashton Whitaker. (Wardenski, Joseph)
NOTICE of hearing: A Rule 16 scheduling conference is scheduled for 10/21/2016 at 11:30 AM by telephone before Judge Pamela Pepper. The parties may appear by calling the court's conference line at 888−557−8511 and using the access code 4893665#. Pursuant to Fed. R. Civ. P. 26(f)(1) and Civ. L. R. 26(a), the parties must file a Rule 26(f) discovery plan no later than seven (7) days before the date of the Rule 16 conference. The court expects the parties to comply with the rules. The court may decline to discuss scheduling or issue a scheduling order until the parties have filed the Rule 26(f) plan. For additional information, please refer to Judge Pepper's procedures on the court's website at www.wied.uscourts.gov. (cc: all counsel)(pwm)
49 TRANSCRIPT of ORAL ARGUMENT ON MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION held on 9/6/2016 before Judge Pamela Pepper Court Reporter/Transcriber John Schindhelm, Contact at WWW.JOHNSCHINDHELM.COM to order directly... Or. Transcripts may be purchased using the Transcript Order Form found on our website or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov Redaction Statement due 10/31/2016. Redacted Transcript Deadline set for 11/10/2016. Release of Transcript Restriction set for 1/8/2017. (Schindhelm, John)
50 TRANSCRIPT of ORAL ARGUMENT ON MOTION FOR PRELIMINARY INJUNCTION held on 9/20/2016 before Judge Pamela Pepper Court Reporter/Transcriber John Schindhelm, Contact at WWW.JOHNSCHINDHELM.COM to order directly... Or. Transcripts may be purchased using the Transcript Order Form found on our website or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov Redaction Statement due 10/31/2016. Redacted Transcript Deadline set for 11/10/2016. Release of Transcript Restriction set for 1/8/2017. (Schindhelm, John)
51 Joint REPORT of Rule 26(f) Plan by All Parties by Ashton Whitaker. (Wardenski, Joseph)
52 ANSWER to 12 Amended Complaint, with Jury Demand by All Defendants.(Stadler, Ronald)
53 Court Minutes and order from the scheduling conference held on 10/21/2016: The court scheduled the final pretrial conference on 9/28/2017 at 1:30 PM in Room 225, and the jury trial (est. 5 days) on 10/16/2017 at 9:00 AM in Room 225. Please refer to the court's order for all the scheduling deadlines. (cc: all counsel)(pwm) (Entered: 10/27/2016)
54 Unopposed MOTION to Modify Scheduling Order by Ashton Whitaker. (Wardenski, Joseph)
TEXT ONLY ORDER signed by Judge Pamela Pepper on 12/14/2016 re 54 Unopposed MOTION to Modify Scheduling Order filed by Ashton Whitaker: The plaintiff filed this unopposed motion to modify the October 21, 2016 scheduling order on November 14, 2016. The court extends its apologies to both parties for its delay in ruling on this motion. The court GRANTS the plaintiff's unopposed motion to modify the scheduling order. The court ORDERS, nunc pro tunc, that the deadline for exchanging Rule 26(a)(1) disclosures is extended to November 18, 2016. The court ORDERS that the deadline for the plaintiff to disclose the identities and reports of his expert witnesses is EXTENDED to January 31, 2017. The court ORDERS that the deadline for the defendants to disclose the identities and reports of their expert

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12/13/2016 01/09/2017 01/09/2017
01/30/2017 02/02/2017 02/13/2017 03/21/2017 04/28/2017 04/28/2017 05/01/2017 05/05/2017
06/21/2017 06/27/2017 06/30/2017

witnesses is extended to March 28, 2017. All other deadlines and dates set in the October 21, 2016 scheduling order remain in effect. (cc: all counsel)(Pepper, Pamela)
Set/Reset Deadlines: Plaintiffs Expert Witness List due by 1/31/2017 Defendants Expert Witness List due by 3/28/2017 Rule 26(a) Disclosures to be exchanged by 11/18/2016. (amb) (Entered: 12/14/2016)
55 Joint MOTION to Modify Scheduling Order by Ashton Whitaker. (Wardenski, Joseph)
56 ORDER signed by Judge Pamela Pepper on 1/9/2017 GRANTING 55 the joint motion to modify the scheduling order. The court ORDERS that (1) The plaintiff's deadline to disclose the identities and reports of his expert witnesses is extended to 2/21/2017; (2) The defendants' deadline to disclose the identities and reports of their expert witnesses is extended to 4/20/2017; (3) The plaintiff's deadline to file a motion seeking leave to identify any rebuttal experts is extended to 5/10/2017; (4) The deadline for the parties to complete all fact discovery is extended to 6/16/2017; (5) The deadline for the parties to complete all expert discovery is extended to 6/30/2017; and, (6) The deadline for any party to file dispositive motions is extended to 7/31/2017. The court ORDERS that the final pretrial conference set for 9/28/17 and the jury trial set for 10/16/17 are REMOVED from the hearing calendar. The court will set a status conference to discuss modifications to the pretrial schedule and trial date. (cc: all counsel) (pwm)
57 Joint MOTION for Protective Order by Ashton Whitaker. (Wardenski, Joseph)
58 ORDER signed by Judge Pamela Pepper on 2/2/2017 GRANTING 57 Joint Motion for Protective Order. (cc: all counsel) (pwm)
59 Certified Record on Appeal 16−3522 Transmitted to US Court of Appeals consisting of 4 vol pldgs sent electronically re 34 Notice of Appeal (cc: all counsel) (Attachments: # 1 docket sheet)(dl)
60 NOTICE of Appearance by Robert D Friedman on behalf of Ashton Whitaker. Attorney(s) appearing: Robert D. Friedman (Friedman, Robert)
61 First MOTION for Order For Independent Medical Examination of Plaintiff by All Defendants. (Stadler, Ronald)
62 BRIEF in Support filed by All Defendants re 61 First MOTION for Order For Independent Medical Examination of Plaintiff . (Attachments: # 1 Exhibit)(Stadler, Ronald)
63 Joint MOTION to Stay Discovery by Ashton Whitaker. (Wardenski, Joseph)
64 ORDER signed by Judge Pamela Pepper on 5/4/2017 GRANTING 63 Joint MOTION to Stay Discovery. The court ORDERS that discovery is stayed until the date that the 7th Circuit issues its decision in defendants' appeal of the preliminary injunction this court issued, or the last day of the school year in the Kenosha Unified School District on 6/12/2017, whichever is later. No later than 6/27/2017 or 15 days after the date the 7th Circuit issues is ruling, whichever is later, the parties shall confer and propose to the court a modified scheduling order to govern the remainder of discovery and pretrial deadlines. (cc: all counsel)(pwm)
65 USCA Mandate (certified copy) as to 34 Notice of Appeal filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis USCA Number 16−3522. The district court's order granting the Appellee's motion for a preliminary injunction is AFFIRMED. Opinion, Final Judgment and Bill of Costs attached. (lmf)
66 Joint MOTION to Modify Scheduling Order by Ashton Whitaker. (Wardenski, Joseph)
67 ORDER signed by Judge Pamela Pepper on 6/30/2017 GRANTING 66 Joint Motion to Modify Scheduling Order. Plaintiff to file response to defendants' Rule 35 motion by end of day 7/10/2017; if plaintiff files response, defendants may file reply by end of day 7/17/2017. If the court grants the Rule 35 motion, it will set deadlines for independent medical examination of plaintiff and disclosure of report of results of examination. Discovery (fact and expert) due by 11/3/2017. Dispositive Motions due by 12/18/2017; response and reply deadlines mandated by local rules shall apply. Any

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07/06/2017 07/10/2017 07/10/2017 07/11/2017 07/20/2017 08/09/2017 08/11/2017
08/28/2017 08/31/2017
09/01/2017 09/05/2017 09/05/2017

party filing proposed findings of fact shall also email a Word version of those proposed findings to PepperPO@wied.uscourts.gov. The court will set telephonic scheduling conference to discuss possible dates for final pretrial conference and trial. (cc: all counsel) (cb)
NOTICE of Hearing: Scheduling Conference to discuss final pretrial conference and trial dates set for 11/6/2017 at 11:30 AM by telephone before Judge Pamela Pepper. Parties wishing to appear by phone may do so by calling the court's conference line at 888−557−8511 and using access code 4893665#. (cc: all counsel)(cb)
68 Joint MOTION for Order Governing Independent Medical Examination of Plaintiff by Ashton Whitaker. (Wardenski, Joseph)
69 NOTICE of Appearance by Joseph J. Wardenski on behalf of Ashton Whitaker. Attorney(s) appearing: Withdrawal of Attorneys Alison Pennington and Sasha Buchert (Wardenski, Joseph)
70 ORDER signed by Judge Pamela Pepper on 7/11/2017. 68 Joint MOTION for Order Governing Independent Medical Examination of Plaintiff GRANTED; see order for details. 61 Defendants' MOTION For Independent Medical Examination of Plaintiff DISMISSED as moot. (cc: all counsel)(cb)
71 NOTICE of Appearance by Joseph J. Wardenski on behalf of Ashton Whitaker. Attorney(s) appearing: Withdrawal of Appearance of Robert D. Friedman (Wardenski, Joseph)
72 STIPULATION (Joint) to dismiss defendant Savaglio−Jarvis filed by All Defendants (Stadler, Ronald) Modified on 8/10/2017 (vkb)
TEXT ONLY ORDER signed by Judge Pamela Pepper on 8/11/2017 re 72 stipulation to dismiss defendant Savaglio−Jarvis. The court APPROVES the stipulation of the parties, dkt. no. 72, to remove Dr. Sue Savaglio−Jarvis, in her official capacity as Superintendent, as a party from this case. The court ORDERS that Dr. Sue Savaglio−Jarvis is DISMISSED from the case, with prejudice. The clerk shall REMOVE Dr. Sue Savaglio−Jarvis as a named defendant in the caption of this case. (cc: all counsel)(cb)
NOTICE of Hearing: Telephone Conference re discovery dispute set for 8/31/2017 at 11:00 AM by telephone before Judge Pamela Pepper. Parties wishing to appear by phone may do so by calling the court's conference line at 888−557−8511 and using access code 4893665#. (cc: all counsel)(cb)
77 Minute and Order Entry for proceedings held before Judge Pamela Pepper: Hearing held on 8/31/2017. Telephone Conference set for 9/6/2017 at 1:45 PM by telephone before Judge Pamela Pepper. Parties wishing to appear by phone may do so by calling the court's conference line at 888−557−8511 and using access code 4893665#. Briefing schedule for plaintiff's motion to compel set as follows: plaintiff's motion due 9/5/2017; defendant's response due 9/12/2017; plaintiff's reply due 9/15/2017. (cb) (Entered: 09/06/2017)
NOTICE of Hearing: Status Conference RE: Discovery Dispute − set for 9/6/2017 01:45 PM By Telephone before Judge Pamela Pepper. Parties wishing to appear by phone may do so by calling the courts conference line at 888−557−8511 and using the access code 4893665#. (cc: all counsel)(kgw)
73 Unopposed MOTION to Amend Case Caption by Ashton Whitaker. (Wardenski, Joseph)
74 TEXT ONLY ORDER signed by Judge Pamela Pepper on 09/05/2017 re 73 Unopposed MOTION to Amend Case Caption filed by Ashton Whitaker: The court GRANTS the plaintiff's unopposed motion to amend the caption of this case. The court ORDERS that the clerk of court shall amend the caption of the case to remove the words "a minor, by his mother and next friend, MELISSA WHITAKER," from the caption, so that the caption of the case in the docket reads, "ASHTON WHITAKER, Plaintiff, v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, Defendant." (cc: all counsel)(Pepper, Pamela)

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09/05/2017

75 MOTION to Compel Discovery Responses by Ashton Whitaker. (Attachments: # 1 Exhibit A (Disputed Discovery Requests and Responses), # 2 Exhibit B (Interrogatories and Responses Referenced in Memorandum of Law), # 3 Declaration of Joseph J. Wardenski)(Wardenski, Joseph)

09/05/2017 76 BRIEF in Support filed by Ashton Whitaker re 75 MOTION to Compel Discovery Responses . (Wardenski, Joseph)

09/06/2017

81 Court Minutes for proceedings held before Judge Pamela Pepper: Status Conference held on 9/6/2017 and Order Signed on October 2,2017. The defendant shall file its motion for cost sharing no later than 9/12/2017 and any response is due no later than 9/15/2017. (kgw) (Entered: 10/02/2017)

09/08/2017

NOTICE of Electronic Filing Error re 75 MOTION to Compel Discovery Responses filed by Ashton Whitaker ; The Declaration of Joseph J. Wardenski should not have been filed as an attachment. This document should have been filed as a separate entry. This document does not need to be re−filed; Please refer to the policies and procedures for electronic case filing and the user manual found at www.wied.uscourts.gov (amb)

09/12/2017 78 BRIEF in Opposition filed by Kenosha Unified School District No 1 Board of Education re 75 MOTION to Compel Discovery Responses . (Stadler, Ronald)

09/15/2017 79 REPLY BRIEF in Support filed by Ashton Whitaker re 75 MOTION to Compel Discovery Responses . (Wardenski, Joseph)

09/27/2017 80 NOTICE of Appearance by Alexa Milton on behalf of Ashton Whitaker. Attorney(s) appearing: Alexa T. Milton (Milton, Alexa)

10/02/2017 82 ORDER signed by Judge Pamela Pepper on 10/2/2017 REFERRING CASE to Magistrate Judge William E. Callahan, Jr. for mediation. (cc: all counsel)(cb)

10/06/2017

83 ORDER REGARDING MEDIATION PROCEEDINGS: Mediation Hearing is set for 10/31/2017 at 10:00 AM in Chambers Room 618, 517 E. Wisconsin Ave., Milwaukee, WI 53202 before Magistrate Judge William E Callahan Jr. See Order for additional deadlines. Signed by Magistrate Judge William E Callahan, Jr on 10/6/17. (cc: all counsel)(dmm)

10/25/2017 84 MOTION for Judgment on the Pleadings by All Defendants. (Stadler, Ronald)

10/25/2017 85 BRIEF in Support filed by All Defendants re 84 MOTION for Judgment on the Pleadings . (Stadler, Ronald)

11/01/2017

86 Minute Entry for proceedings held before Magistrate Judge William E Callahan, Jr: Settlement Hearing was held on 11/1/2017. Although mediation did not result in settlement of the plaintiffs claims, the parties have agreed to meet again with this court on November 21, 2017, at 9:30 am to continue settlement discussions. Thus, this court will retain this case for mediation purposes until at least the close of business on November 21, 2017 (dmm)

11/06/2017

87 Minute and Order Entry for proceedings held before Judge Pamela Pepper: Scheduling Conference held on 11/6/2017. Briefing deadlines for 84 defendants' motion for judgment on the pleadings SUSPENDED pending filing of mediation report. If mediation not successful, the court will set new briefing schedule. (cb) (Entered: 11/20/2017)

11/21/2017

88 Minute Entry for proceedings held before Magistrate Judge William E Callahan, Jr: Cont'd Mediation Hearing was held on 11/21/2017. Despite the efforts of the parties, mediation did not result in settlement of the plaintiffs claims. Accordingly, this case will be reassigned to Judge Pepper for further pretrial proceedings, trial and eventual entry of final judgment. (dmm) (Entered: 11/27/2017)

12/01/2017

89 TEXT ONLY ORDER signed by Judge Pamela Pepper on 12/1/2017 re 84 MOTION for Judgment on the Pleadings filed by Kenosha Unified School District No 1 Board of Education, Sue Savaglio−Jarvis: On October 25, 2017, the defendants filed a motion for judgment on the pleadings. The parties, however, had agreed to participate in mediation, so the court suspended the proceedings to allow them to try to resolve the case. On November 21, 2017, Judge Callahan filed his mediator's report, indicating that the parties had not been able to reach an agreement. The court ORDERS that the plaintiff shall file his response to the defendant's motion for judgment on the pleadings

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12/27/2017 12/28/2017
01/22/2018 01/23/2018
01/23/2018 01/23/2018

by the end of the day on January 5, 2018. The court ORDERS that the defendants shall file any reply in support of their motion by the end of the day on January 26, 2018. The court will resolve the pending motion to compel shortly (dkt. no. 75). NOTE: There is no document associated with this text−only order. (cc: all counsel)(Pepper, Pamela)
90 NOTICE of Settlement in Principle and Stipulation to Stay Deadlines (Joint) by Ashton Whitaker. (Wardenski, Joseph)
TEXT ONLY ORDER signed by Judge Pamela Pepper on 12/28/2017 re 90 joint notice of settlement in principle and stipulation to stay deadlines. The court APPROVES the parties' joint stipulation to stay deadlines. Dkt. No. 90. The court ORDERS that the parties' deadlines with regard to the defendant's pending motion for judgment on the pleadings are STAYED. The court ORDERS that, by the end of the day on January 29, 2018, the parties shall file either (a) their joint motion for approval of consent judgment, or (b) a status report indicating why such a motion for approval has not been filed. (cc: all counsel)(cb)
91 Joint MOTION to Approve Proposed Consent Judgment and Notice of Settlement by Ashton Whitaker. (Attachments: # 1 Proposed Consent Judgment)(Wardenski, Joseph)
92 ORDER signed by Judge Pamela Pepper on 1/23/2018. 91 Joint motion to approve consent judgment GRANTED. 75 Plaintiff's motion to compel DENIED as moot. 84 Defendant's motion for judgment on the pleadings DENIED as moot. All pending deadlines VACATED. Clerk's office to close case administratively. (cc: all counsel) (cb)
93 CONSENT JUDGMENT signed by Judge Pamela Pepper on 1/23/2018. (cc: all counsel)(cb)
Case administratively closed pursuant to 92 Order. (amb) (Entered: 01/24/2018)

Case: 2:16-cv-943 As of: 03/31/2018 10:19 PM CDT 11 of 11