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School district struggles to prove gender identity policies don't let boys shower with girls

Wisconsin district says policies don't "condone" 18-year-old male exposing genitals to 14-year-old girls but can't point to relevant, enforceable documents. May get sued for $11,000 open records estimate.

Published: May 18, 2023 11:33pm

Updated: May 19, 2023 9:57am

After an 18-year-old male in a Wisconsin school allegedly approached four 14-year-old females in a girls' locker room shower, exposed his genitals and bathed with them, citing his gender identity as a woman, the school district says its policies do not "condone" such behavior.

That may be a stretch, and Wisconsin's Sun Prairie Area School District has not answered requests from Just the News to show where in its policies coed nudity is prohibited even for gender-confused students.

The Wisconsin Institute for Law and Liberty said it's not satisfied by the Madison-area district's lengthy response that followed the public interest law firm's April 19 letter on behalf of a parent, accusing the district of violating Title IX reporting obligations and failing to back up its assurances with specific policies.

The district's lawyers in their May 10 response demanded at least $11,000 to fulfill the institutes's open-records request for communications between district and East High School officials, messages to and from teachers, counselors and board members, and meeting or calendar invitations "related to" the alleged March 3 incident.

On Thursday, the conservative- and libertarian-minded institute threatened to sue the district for the $11,000 demand.

The district has never charged "location costs" for previous requests from WILL, the letter says, which suggests it is "hiding something."

"WILL is still waiting for direct answers to our letter that clarifies the district’s official policy" as approved by the board, not just guidance language, "and how female students will be protected in the future," Director of Education Policy Libby Sobic told Just the News on Monday night.

The April 19 letter states the four freshmen girls entered the locker room March 3 to shower in their bathing suits after their swim unit for physical-education class.

They noticed the older male by the lockers, whom they recognized from the girls' bathrooms but who was not in their PE unit, and went to the showers. The male followed them, announced "I'm trans" and then "undressed fully and showered completely naked" next to one of them, turning to expose his genitals to all four. The girls tried to leave "as quickly as possible."

When another student reported what happened March 6 but didn't identify the girls, Associate Principal Heidi Walter withheld the incident from the Title IX coordinator in violation of federal law, according to the letter. Four days later, when the student offered the girls' names, Walter said they would have to approach her directly.

Different sets of parents learned what happened and asked March 16 and 29 what the school was doing in response. But Principal Renee Coleman's responses didn't cite any specific policy or Title IX procedure applicable to the incident, WILL claims. The district didn't provide a specific policy until April 10, five days after the girls' parents had a fruitless meeting with officials. 

The undated, untitled one-page document appears to have been compiled in haste, linking to the district's equity framework and the Biden administration's contested interpretation of Title IX as covering gender identity. It includes several paragraphs also found in the district's restroom and locker room accessibility policy, adopted in 2016 and still listed as active, with notable exceptions.

Both versions say trangender students' requests to use the opposite-sex locker room will be evaluated "on a case-by-case basis" with the goals of facilitating their access to PE programs, "ensuring adequate student privacy and safety" and "minimizing stigmatization of the transgender student." There is "no absolute rule" they use facilities corresponding with their sex.

The 2016 policy, however, doesn't have a section in the new version requiring "documentation and communication" when students want to use a locker room in line with their gender identity. This "can take the form of notes using the Gender Support Tool" and "email and/or verbal communication" to adults with "legitimate educational interests, including safety interests."

WILL's April 19 letter sought the restroom and locker room guidance in effect March 3 and the date of its creation, as well as any privacy policy posted in the locker room. Attorney Axley Brynelson pointed to a 15-year-old locker room policy that bans athlete interviews and recording devices but not the one-page document given to parents April 10 or the 2016 policy.

The district's lawyers also pointed to a new and very long "supporting all students" page apparently posted that day, May 10, that refers to a "March 1" locker room incident and the 15-year-old locker room policy. (WILL's letter gives March 3 as the date.)

The district "immediately addressed" the situation once it was "brought to the District's attention," started an investigation and "took steps" to make sure it can't happen again, the page says. It includes April 21 and 22 communications to families that claim Fox News and other sources shared accounts that were "ill-informed, inaccurate, and incomplete."

While claiming it couldn't legally "comment on the details," the district tacitly confirmed the basics. A section written in red letters says it "does not condone" students "in a state of undress" or "showering in the presence" of the opposite sex, and the incident "was not in line" with its policies.

The district muddied the waters, however, by invoking a 7th U.S. Circuit Court of Appeals ruling that found sex-based school restroom policies can violate both Title IX and the 14th Amendment. That 2017 ruling mentioned locker rooms once, describing Title IX's regulatory provision for "separate, but comparable" locker rooms and emphasized the biological female who sued her district used a stall in the boys' restroom, obviating privacy concerns.

The district page includes gender identity guidelines "updated 2022-23" that feature the same locker-room language from the one-page document shared with parents, but not a specific date they were updated. WILL's Sobic emphasized the district didn't provide a board-approved policy.

The district's response still does not "address how women and girls will be protected" when males seek to use their facilities, "such as clearly stating whether a transgender student will be permitted to shower or change in front of other minor students," Sobic said. It's not enough to tell girls they "may" be given access to a single-user restroom if they don't want males around.

District spokesperson Patti Lux pointed Just the News to its "supporting all students" page but didn't otherwise answer queries.

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