Lawmakers Seek Gender Restrictions on School Bathrooms, Locker Rooms

A pair of Republican lawmakers is circulating a bill that would require public school boards to designate school restrooms and changing rooms (i.e., locker or shower rooms) accessible by multiple students as for the exclusive use of either “males” or “females.”

The proposal would effectively bar transgender students (students who identify with a gender that is not their biological gender) from using school bathrooms or changing rooms assigned to the gender with which they identify. It would, however, allow transgender students to use single-occupancy restrooms or changing rooms if their parents or guardians seek the accommodation in writing.

The measure, authored by state Rep. Jesse Kremer (R-Kewaskum) and state Sen. Steve Nass (R-Whitewater), defines a student’s “sex” as the physical condition of being male or female, as determined by an individual’s chromosomes and identified at birth by that individual’s anatomy. It further prohibits a member of the female sex from using a restroom or changing room that has been designated as the male restroom or changing room and likewise prohibits a member of the male sex from using a restroom or changing room that has been designated as the female restroom or changing room.

Sen. Nass and Rep. Kremer said in an email seeking co-signers for the bill that it would protect all students’ privacy and safety and reinforce “the societal norms in our schools.”

Advocates for transgender students blasted the measure as unnecessary and said it would further marginalize and stigmatize those students.

The proposal would also allow parents to file a written complaint if they feel their student’s privacy is being violated because of transgender students’ use of a school’s bathroom or changing room. A school district would then have 30 days to “investigate and attempt to resolve the complaint.”

If the complaining parents are not satisfied with the school district’s resolution, they may file a lawsuit against the district seeking money damages or other kinds of remedies that are largely undefined in the bill.

The proposal would allow a school board to temporarily designate a pupil restroom or changing room for special events. (An example would be allowing the girls’ locker room to serve as a visitor’s locker room for a boys’ basketball contest.) This provision was added at the WASB’s suggestion.

In conversations with the bill’s authors, WASB lobbyists raised concerns about the lack of precedent for or clarity in the lawsuit provisions and repeatedly stressed that the WASB believes that it is generally better that these types of decisions are handled at the local level on a case-by-case basis by people who are familiar with the individual situations. We noted that a number of Wisconsin school districts have addressed this situation through local school board policymaking.

The WASB also raised concerns that the proposal could potentially place school boards in a situation where if they comply with the bill’s provisions they could be in conflict with federal authorities, including the U. S. Department of Justice (DOJ) and the U.S. Department of Education’s Office for Civil Rights (“OCR”), which share authority to enforce Title IX and its implementing regulations.

WASB lobbyists noted that although no court decision has explicitly held that any particular school must allow transgender students access to particular restroom facilities, the OCR has taken a clear position that discrimination against students because of their gender identity or transgender status violates Title IX, and that schools generally must treat transgender students consistent with their gender identity. (See WASB May 2015 Legal Comment)

Read More: Wisconsin State Journal