Why the WASB will Oppose the Changing Room Bill: Local Control

Assembly Bill 469, authored by state Rep. Jesse Kremer (R-Kewaskum) and state Sen. Steve Nass (R-Whitewater) 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 bill is scheduled for a public hearing on Thursday, Nov. 19 at 10:00 a.m. in Room 417 North, State Capitol, before the Assembly Education Committee.

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 instead allow transgender students to use single-occupancy restrooms or changing rooms if their parents or guardians seek the accommodation in writing.

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 and community values.  In our view, these are sensitive and complicated issues that occur in school districts with a myriad of different facilities that are not amenable to a “one-size-fits-all” solution from the state.  We note that a number of Wisconsin school districts have addressed this situation through local school board policy-making.

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 remedies that are largely undefined in the bill. They may also receive attorney fees.

The WASB is concerned about the lack of precedent for or clarity in the lawsuit provision.

Although no court decision has explicitly held that any particular school must allow transgender students access to particular restroom facilities, the U.S. Department of Education’s Office for Civil Rights (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.

The WASB is concerned that the proposal could place school boards in a situation where if they comply with the bill’s provisions they could be in conflict with federal authorities, and, in turn, risk losing their federal funding.

Ultimately, regardless of whether this state legislation passes, this issue is likely to be decided in the federal courts.  A case involving a Palatine, Illinois school district appears headed to the federal Seventh Circuit Court of Appeals. The U.S. Constitution holds that federal law trumps state law and because both Wisconsin and Illinois are within the jurisdiction of the seventh circuit, an appellate ruling in that case would supersede Wisconsin state law.