WILL Helps to Defend Elkhorn School District’s Policy that protects the Safety and Privacy of its Female Students


The News: The Wisconsin Institute for Law & Liberty (WILL) has filed a conditional motion to intervene and to participate as an amicus party in a lawsuit recently filed against the Elkhorn School District (ESD) for designating separate bathrooms based on biological gender. WILL represents an association of over 100 parents of students in the district who simply want their kids to go to school in a safe environment.

The Quotes: WILL Deputy Counsel Luke Berg, asserted, “On behalf of families of the Elkhorn school district, WILL is prepared to defend the rights of parents and their students to bodily privacy. The district’s policy is in accordance with Title IX and centuries of precedent. We urge the court to adhere to Title IX’s plain text as well as acknowledge that the school district has already made accommodations for the plaintiff.”

An Elkhorn Parent and Association member stated, “Parents deserve to know their kids will go to school in a safe learning environment. We are not afraid to make our voice heard in court and with our enrollment decisions.”

The Function of Title IX: Title IX explicitly allows for sex-separated bathrooms. Current regulations allow school districts to “provide separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.3. At the time of this provision’s adoption, “sex” undoubtedly referred to “biological sex,” which was defined by biology and reproductive function. The Plaintiff’s argument is that in today’s world, Title IX prohibits exactly what it explicitly permits. Accepting the Plaintiff’s argument would turn Title IX upside down.

What’s At Stake: Granting an injunction to the Plaintiff would ignore the concerns of the families in the district we represent and the facts in the case. There is a vast concern among the students and parents about the privacy and safety of students in bathrooms and locker rooms, especially the young female students.

Additionally,  the school has already made accommodations for the Plaintiff. The school has six gender-neutral restrooms that are available to the Plaintiff.

Every student is guaranteed the right to a free, public education. An injunction would thus force families to decide between two rights: a free public education, and their right to bodily privacy from members of the opposite sex. If the court grants this motion or rules in favor of the Plaintiff, it will have dire consequences for the rest of the student body by forcing them to forfeit one of these rights.

Biden Administration’s Proposed Changes to Title IX: While the current Title IX regulations explicitly permit sex-separated bathrooms, 34 C.F.R. § 106.33, the Department of Education recently published a new final rule that is set to go into effect on August 1, 2024. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33,474 (April 29, 2024). That new rule is not yet in effect, and it is currently facing a host of challenges from states and other entities, and is likely to eventually reach SCOTUS.

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Luke Berg

Luke Berg

Deputy Counsel

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