A Legal Update on the Rights of Transgender Students

This Update Bulletin will provide a legal update on a variety of issues faced by school principals when dealing with transgender students. Make no mistake about it, these are controversial issues arising in the current politically charged times. Protecting transgender students’ rights, and creating a safe place for them at school could put principals squarely in the crosshairs of parents and community members who disagree with what’s happening at school, be it professional development or honoring a student’s choice of pronouns. Therefore, a word of caution up front: the material provided herein may quickly become outdated, and should not be relied upon as legal advice. And given the current legal and political landscape, don’t try to go it alone. Consult with your district’s legal counsel about your school’s specific situation.


Two Prevailing Federal Laws. There are two federal laws at play when it comes to the rights of transgender students. First, the Equal Protection Clause of the 14th Amendment provides that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” All students have a federal, constitutional right to equal protection, which means that schools have a duty to protect all students from unlawful harassment on an equal basis.

Second, Title IX of the Education Amendments of 1972 prohibits sex discrimination in education and in employment. Title IX states that "No 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."Examples of the types of discrimination that are covered under Title IX include sexual harassment; the failure to provide equal athletic opportunity; sex-based discrimination in a school’s science, technology, engineering, and math courses and programs; and discrimination based on pregnancy. 

Wisconsin Case Provides Schools Clarity On Bathrooms. In 2017, the Seventh Circuit, whose rulings are binding on Wisconsin schools, issued a decision in Whitaker by Whitaker v. Kenosha Unified Sch. Dist. In the Whitaker case, the court ruled that the district violated Title IX when it enforced a policy requiring students to use a bathroom that does not conform with their gender identity. The court held that the policy punished transgender students for their gender non-conformance and subjected Ash Whitaker, as a transgender student, to different rules, sanctions, and treatment than non-transgender students. The court rejected the school district’s argument that Ash had failed to make use of readily available alternatives and dismissed the district’s privacy argument as “based upon sheer conjecture and abstraction.”

The Seventh Circuit enjoined the school district from 1) denying Ash access to the boys’ restroom; 2) enforcing any written or unwritten policy against Ash that would prevent him from using the boys’ restroom while on school property or attending school-sponsored events; 3) disciplining Ash for using the boys’ restroom while on school property or attending school-sponsored events; and 4) monitoring or surveilling Ash’s restroom use in any way. The school district sought review in the U.S. Supreme Court but then settled the case. 

The takeaway from the Whitaker case is that schools in Wisconsin should allow students to use the restroom of their gender identity. Offering a gender neutral restroom isn’t enough.

Biden Administration Applies U.S. Supreme Court Employment Decision To Title IX. On June 15, 2020, the U.S. Supreme Court ruled in the Bostock v. Clayton Cty., Ga. case holding that discrimination on the basis of an individual’s status as homosexual or transgender constitutes sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964. The Supreme Court said: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” A January, 2021, Executive Order from President Biden cites the Bostock case which held that Title VII’s prohibition on discrimination based on sex covers discrimination on the basis of gender identity and sexual orientation. The Biden administration’s policy is to apply the reasoning in Bostock to all laws and implementing regulations that prohibit sex discrimination, including Title IX.

On June 16, 2021, the U.S. Department of Education (DOE) issued a Notice of Interpretation explaining that it will enforce Title IX's prohibition of discrimination on the basis of sexto include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity. This Notice reaffirms that DOE's Office for Civil Rights (OCR) will again investigate complaints of discrimination based on sexual orientation and gender identity and will address compliance concerns or violations when necessary, a practice that was halted during the past administration. Finally, the DOE issued a back to school video aimed at LGBTQ students reminding them of their legal rights, and informing them how to file a complaint.


Locker Rooms. There is no definitive guidance in Wisconsin on the use of locker rooms based on gender identity. However, other courts have considered locker rooms much like bathrooms. For example, in efforts to accommodate a transgender student who identified as and socially transitioned to male, a Minnesota school district remodeled a boys locker room with a separate entrance, private toilet stall and two private stalls for changing and showering. The district recommended that the student use the boys locker room with enhanced privacy, but the student continued to use the main boys locker room. Citing the Whitaker case, a Minnesota court denied the school district’s motion to dismiss, thus allowing the case to proceed to trial. Thereafter, the parties settled the case for $300,000, and several school district reforms including developing a policy to allow every student to use all facilities consistent with their gender; and training all school board members, staff and students on the policies.

Student Confidentiality. A student’s transgender status, legal name or sex assigned at birth is confidential medical information and protected personally identifiable information. Disclosure of that information may violate the school’s confidentiality obligations under the Family Educational Rights and Privacy Act (FERPA) or constitutional privacy protections. Disclosure could also expose a student to harassment and abuse from peers, educators and school staff. Absent an explicit legal obligation or express permission from the student and family, such information is protected and a district should implement safeguards to prevent disclosures. Source: Schools in Transition, A Guide for Supporting Transgender Students in K-12 Schools.

Overnight Trips. Again, there is no definitive state or federal legal authority on the question of room assignments for transgender students attending overnight trips. However, schools may look to the 2016 Obama Administration Guidance which provides:

Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single occupancy accommodations if it so chooses.

Given the recent DOE Notice, it is likely that the 2016 Guidance on overnight trips will be enforced, requiring schools to allow transgender students to access rooms consistent with their gender identity. Note that the Guidance echoes FERPA’s confidentiality mandate by barring schools from disclosing personal information about the transgender student to other students.

Dress Codes. In general, courts grant school districts a lot of latitude in adopting and enforcing dress codes that are based on promoting a safe and educationally-focused environment at school. But a transgender student could challenge a dress code that contains gender specific provisions on several legal grounds such as: 1) it is a violation of their free expression rights under the First Amendment; 2) it is a violation of their rights to equal protection under the Fourteenth Amendment; 3) it is a violation of Title IX’s prohibition on discrimination based on gender; and 4) it is a violation of state civil rights and constitutional protections.

Name Changes. Section 786.36 of the Wisconsin statutes provides a method for any citizen, including minors, to petition the circuit court of the county where s/he resides to have his/her name changed. Children younger than 14 may not file a petition on their own behalf. Instead, a petition must be brought by a parent, both parents, the child’s guardian or legal custodian. Though a statutory name change has the advantage of providing an official record, the general common law rule in Wisconsin is that all persons, including minors, can adopt whatever name they please. Thus, students who are capable of making informed decisions can change their name by simply adopting a new name of their choice. As long as the name is not adopted for improper purposes, it will constitute the student’s legal name. The attorney general advises school administrators generally to honor requests from students who have obtained new names (whether pursuant to statute or common law) and to make corresponding changes in school records.


The population of transgender students is a vulnerable one that has many challenges and hardships. As transgender students have become more visible on campuses nationwide, school principals have to become more responsive to their unique needs and promote a safe school environment that deters hate-motivated behaviors. Moreover, principals are often called upon to engage in a delicate balancing act when students and parents aren’t on the same page regarding gender identity.

While there may be greater clarity for Wisconsin principals on transgender students’ choice of bathrooms, the legal landscape remains murky for many other issues. As such, you are encouraged to seek guidance from legal counsel to avoid risk of liability arising at your school based on your decisions.

Finally, recent guidance from the Department of Education on supporting transgender youth in schools recommends that policies be reviewed or created that respect all students’ gender identities. It further recommends implementing policies to safeguard students’ privacy. Since principals are on the front line of dealing with students and parents on these issues, it is recommended that you know your policies, and be involved in revising or creating policies that align with the current legal landscape while meeting your schools’ needs.

This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. The material provided herein may quickly become outdated; it should not be relied upon as legal advice. Please consult with your district’s legal counsel relevant to your school’s specific situation. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected].