ELKHORN — A transgender female seventh-grader is suing the Elkhorn Area School District after not being allowed to use the girls’ bathroom.
Her attorneys say the district violated Title IX, the federal law that prohibits discrimination based on gender or sex in schools.
The federal lawsuit, filed Thursday, refers to the seventh-grader as Jane Doe.
Her assigned sex at birth was male. However, according to the lawsuit, when she was in sixth grade, she told a teacher she was transgender and wanted to use female pronouns.
Afterward, the student’s parents and the school met to create a “gender support plan”. In that meeting, the guidance counselor never gave the student the option to use the girls’ restrooms and locker rooms, according to the suit.
Instead, she was told she could only use faculty restrooms.
The lawsuit alleges that Jane felt uncomfortable and anxious being forced to use the faculty restrooms. It also says she missed class time because the restrooms were further away.
On some occasions, according to the suit, the student used the girl's bathrooms, and teachers and administrators reprimanded her for doing so.
The district's superintendent, Jason Tadlock, told TMJ4 in an email that “due to pending litigation, I am not comfortable speaking to the specifics of the lawsuit” and that he has yet to review it with their attorney.
He added “We always strive to meet all our student's needs, and I am saddened to learn that one of our students and/or parents feel that we are not meeting their needs to their satisfaction. “
The family is represented by attorneys who have fought and won this fight before in a 2016 Kenosha case.
“That case, Whittaker, held that our students are able to use bathrooms that correspond with their gender identity,” Victoria Davis Davila, their attorney, said.
The 2016 case is something Davila said the defendants knew about, citing a school board meeting on July 24, 2023, where superintendent Tadlock made a comment against the written policy in place.
"Will my student be required to use a restroom with someone of the opposite biological sex? They will never be required to do that,” Tadlock said in a YouTube recording of the meeting.
The lawsuit alleges many parents and community members attended that meeting to voice opposition to transgender students’ rights in EASD schools.
After that board meeting, Jane’s parents formally requested that Jane be permitted to use girls’ restrooms at school in the new school year. Defendant Tadlock and Defendant Ryan McBurney, the EAMS Principal, denied the request, according to the complaint.
“She’s suffered a lot of emotional harm and that’s going to continue as long as she’s not using the facilities that she’s entitled to use,” Davila explained.
The lawsuit has mixed reactions from parents and people who live in Elkhorn.
“I think if there was a male that went into a female locker room, I’d immediately pull my daughter out of the school. You’re right to do that doesn’t mean more than anyone else in the locker room to feel safe,” Oscar Garcia said. He attended Elkhorn Area Middle School and has young children of his own.
Another Elkhorn resident and EAMS graduate disagreed.
“I’m ashamed because I feel like every student at a school should be welcome,” Kenzie Cavillo shared.
The sentiment was shared by Jane Doe’s parents in a press release provided by the family’s attorney.
“We are bringing this lawsuit because our daughter has the right to be treated like every other girl at school. No one should ever be discriminated against for who they are, not at work, and especially not at school,” the girl's father said in the release.
The family is seeking damages and an order preventing the school from denying Jane and any other transgender students access to school facilities.
The family’s attorney also tells TMJ4 that they will be seeking a preliminary injunction to allow Jane to use female bathrooms while the case goes through court.
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