When the Supreme Court prohibited workplaces from enforcing men's dress codes on male employees in 2020, deeming it discrimination on the basis of sex, the Biden administration and allied activists jury-rigged the Title VII Bostock precedent onto Title IX, claiming it required schools to let students use opposite-sex intimate facilities based on gender identity.

The shoe is on the other foot now that the high court has upheld state bans on males in girls' sports in the B.P.J. precedent, rebuking lower courts for stretching Bostock beyond employment into the very different regulatory context of public education.

In a highly unusual move, the ACLU intervened in a months-old lawsuit against a rural Wisconsin school district for letting boys and girls use each other's restrooms and locker rooms, seeking to limit the damage it inflicted on the transgender cause by losing badly in its litigation against Idaho and West Virginia for their girls-only sports laws.

Even though the progressive behemoth claimed workplace-focused Bostock mapped neatly onto Title IX, it insisted B.P.J. doesn't apply in schools beyond sports in a friend-of-the-court brief in the district court hearing the Title IX case against the New Richmond School District. Such outside briefs are rarely filed before appeals.

The ACLU is representing the Gay Straight Alliance for Safe Schools, which the Wisconsin Department of Public Instruction uses to train school employees each year on creating "safe and supportive school environments for LGBTQ+ youth."

Supporters of single-sex facilities denounced the ACLU for jumping into the case, brought in April by the Wisconsin Institute for Law and Liberty on behalf of parents and female students in the district, which was already under investigation by the Trump administration for voting down a proposal in February to separate restrooms and locker rooms by sex.

"I am slowly coming out of a state of shock," junior Ella Frei, identified by her lawyers as a member of the plaintiff association suing the district, wrote on X when learning of the ACLU's involvement. She asked for prayer. 

Frei has become a face of opposition to district policy over the past several months. She gained visibility from Riley Gaines, who helped kickstart the movement against males in girls' sports, and X owner Elon Musk, who allegedly liked a post by a Moms for Liberty activist who asked him to give Frei a "shout out."

The lawsuit identifies Frei by her initials. When she protested reports of a male "using the girls’ bathrooms" last fall, administrators allegedly told her that any objecting girls would have to use "one of the four single-stall bathrooms instead," the suit says.

"E.F. misses class time" and "parts of her lunch hour" in order to use those restrooms, which are "located on the opposite side of the school from her classrooms." One is in the teachers' lounge and "often occupied by staff," the suit says.

Frei was previously known as an "athlete and rising influencer" with "big dreams of becoming a sports broadcaster." As recently as January she was giving "glow-up[s]" to local sports personalities.

No different than 'an overly curious student of the same biological sex'

The Supreme Court's June 30 ruling against the gender-identity interpretation of Title IX, in the school sports challenge, came less than three weeks after New Richmond filed its motion to dismiss the lawsuit, throwing its legal strategy into disarray.  

The lawsuit asks the court to "disregard a decade of legal precedent regarding transgender students’ bathroom access and turn the antidiscrimination provisions that are intended to shield students from discrimination into a sword to discriminate against transgender students," the June 12 motion said.

There is no "directly contrary United States Supreme Court decision" to precedents by the 7th U.S. Circuit Court of Appeals, which are binding on the district, that require school districts to interpret Title IX as covering gender identity, the district said.

Without explaining why, the parties asked Magistrate Judge Anita Marie Boor on June 29 to give the plaintiffs extra time to oppose the motion to dismiss and the district to respond to that opposition. She granted the "longer-than-typical briefing schedule" the next day, when SCOTUS upheld the state bans on males in girls' sports.

The ACLU asked for Boor's permission to file a brief on behalf of GSAFE on June 18, without referencing the pending SCOTUS decision in B.P.J. and its potential to upend the litigation.

The group can provide "insight as to how a biological-sex bathroom mandate would negatively impact the internal and external acceptance of LGBTQ+ students across the state," creating a "hate-filled learning environment at an important time during children’s development," it said.

The court record shows the ACLU submitted a revised brief Monday, tersely arguing its subsequent loss in B.P.J. as irrelevant to the issue of male students in female restrooms and locker rooms.

"Drawing on decades of experience, GSAFE has found that policies allowing transgender students to use facilities consistent with their gender identity foster student well-being, reduce stigma, and promote full participation in school life" without "compromis[ing] the privacy or safety of other students," the brief says, citing single-stall restrooms as a solution for girls.

When "inclusive" policies are challenged in court, "schools tend to become more concerned with keeping the status quo, rather than improving the learning environment" and "students who identify as transgender begin to withdraw and feel undeserving to be seen, believing that they have no place to belong at school," according to the ACLU.

It blamed "a select few students and parents" for an "escalation of homophobic and transphobic behavior that is now plaguing the [high] school," including group chats involving "cisgender" boys and girls to "spread hate and organize a walkout against the transgender students."

Less than three pages of the brief deal with the SCOTUS ruling for state bans on males in girls' sports.

The high court "believes that equality in school sports under Title IX is different from other areas protecting equal opportunity given the competitive nature and physical risk," and it gave states discretion over "whether transgender individuals may access school facilities consistent with their gender identity," the ACLU said.

The precedent didn't address "general sex discrimination under Title IX and even went so far as to distinguish sex discrimination as seen in Bostock from Title IX sex discrimination in sports, specifically," the brief says, without noting the ACLU had vociferously argued Bostock recognized gender identity within Title IX.

The brief pooh-poohs the argument that "there are physical differences and risks associated with bathroom use," whether relieving oneself or freshening up, and insists that any risk to girls' privacy must be "real and practical, not theoretical."

It quotes a 7th Circuit precedent that dismisses the threat of males in the girls' restroom as no different than "an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions."