UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

ASHTON WHITAKER, a minor, by his

mother and next friend, MELISSA
WHITAKER,

Plaintiff, Civ. Action No. 2:16-cv-00943

v. AMENDED COMPLAINT

KENOSHA UNIFIED SCHOOL DISTRICT

NO. 1 BOARD OF EDUCATION and SUE
SAVAGLIO-JARVIS, in her official capacity
as Superintendent of the Kenosha Unified
School District No. 1,

Defendants.

INTRODUCTION

1. Plaintiff Ashton (“Ash”) Whitaker, a 16-year-old boy, is a rising senior at George

Nelson Tremper High School (“Tremper”) in the Kenosha Unified School District No. 1

(“KUSD”) in Kenosha, Wisconsin. Ash is a boy. He is also transgender. Ash was assumed to

be a girl when he was born, and was designated “female” on his birth certificate, but has a male

gender identity and lives as a boy in all aspects of his life. Ash’s family, classmates, medical

providers, and others recognize Ash as a boy, respect his male gender identity, and support his

right to live and be treated consistent with that gender identity.

2. Defendants Kenosha Unified School District No. 1 Board of Education (the

“Board”), Superintendent Sue Savaglio-Jarvis, and their agents, employees, and representatives,

have repeatedly refused to recognize or respect Ash’s gender identity and have taken a series of

discriminatory and highly stigmatizing actions against him based on his sex, gender identity, and

transgender status. The actions, as described more fully herein, have included (a) denying him

Case 2:16-cv-00943-PP Filed 08/15/16 Page 1 of 36 Document 12

access to boys’ restrooms at school and requiring him to use girls’ restrooms or a single-

occupancy restroom; (b) directing school staff to monitor his restroom usage and to report to

administrators if he was observed using a boys’ restroom; (c) intentionally and repeatedly using

his birth name and female pronouns, and failing to appropriately inform substitute teachers and

other staff members of his preferred name and pronouns, resulting in those staff referring to him

by his birth name or with female pronouns in front of other students; (d) instructing guidance

counselors to issue bright green wristbands to Ash and any other transgender students at the

school, to more easily monitor and enforce these students’ restroom usage; (e) requiring him to

room with girls on an orchestra trip to Europe and requiring, as a condition of his ability to

participate in a recent overnight school-sponsored orchestra camp held on a college campus, that

he stay either in a multi-room suite with girls, or alone in a multi-room suite with no other

students, while all other boys shared multi-room suites with other boys; and (f) initially denying

him the ability to run for junior prom king, despite being nominated for that recognition based on

his active involvement in community service, instructing him that he could only run for prom

queen, and only relenting and allowing him to run for prom king after a protest by many of those

same classmates.

3. Through these actions, Defendants have discriminated against Ash on the basis of

sex, including on the basis of his gender identity, transgender status, and nonconformity to sex-

based stereotypes, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681, et seq., and on the basis of sex and transgender status in violation of the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution. Defendants’ actions

have denied Ash full and equal access to KUSD’s education program and activities on the basis

of his sex.

Case 2:16-cv-00943-PP Filed 08/15/16 Page 2 of 36 Document 12

 4. Plaintiff, through his mother and next friend, Melissa Whitaker, brings this action

against Defendants based on these unlawful and discriminatory actions.

5. Plaintiff seeks a declaratory judgment, preliminary and permanent injunctive

relief, and damages resulting from Defendants’ discriminatory actions.

PARTIES

6. Plaintiff Ash Whitaker is a 16-year-old boy. He was born in 1999. He resides in

Kenosha, Wisconsin and is a student at Tremper High School, a public high school in the

Kenosha Unified School District No. 1. He will begin his senior year at Tremper on September

1, 2016.

7. Melissa Whitaker is Ash’s mother and brings this action as his next friend. Ms.

Whitaker resides in Kenosha, Wisconsin and is employed by the Kenosha Unified School

District No. 1 as a high school teacher at Tremper.

8. Defendant Kenosha Unified School District No. 1 Board of Education is a seven-

member elected body responsible for governing the Kenosha Unified School District No. 1, a

public school district serving over 22,000 students in kindergarten through 12th grade who reside

in the City of Kenosha, Village of Pleasant Prairie, and Town and Village of Somers. The Board

derives its authority to govern KUSD directly from the Wisconsin Constitution and state statutes.

The school district is a recipient of federal funds from the U.S. Department of Education, the

U.S. Department of Agriculture, and the U.S. Department of Health and Human Services, and, as

such, is subject to Title IX of the Education Amendments of 1972, which prohibits sex

discrimination against any person in any education program or activity receiving Federal

financial assistance. The Board designates responsibility for the administration of KUSD to its

Superintendent of Schools, currently Dr. Sue Savaglio-Jarvis, who oversees a number of district-

Case 2:16-cv-00943-PP Filed 08/15/16 Page 3 of 36 Document 12

level administrators. KUSD operates 42 schools, including six high schools. One of the high

schools is Tremper, a 1,695-student public high school located in Kenosha, serving students in

grades 9 through 12. Tremper’s administration includes a principal and three assistant

principals. The Board is vicariously liable for the acts or omissions of its employees, agents, and

representatives, including those of the other Defendant Savaglio-Jarvis and other Tremper

administrators, staff, and volunteers.

9. Defendant Sue Savaglio-Jarvis is the Superintendent of the Kenosha Unified

School District and is sued in her official capacity. At all times relevant to the events described

herein, Savaglio-Jarvis acted within the scope of her employment as an employee, agent, and

representative of the Board. In such capacity, she carried out the discriminatory practices

described herein (a) at the direction of, and with the consent, encouragement, knowledge, and

ratification of the Board; (b) under the Board’s authority, control, and supervision; and (c) with

the actual or apparent authority of the Board.

JURISDICTION AND VENUE

10. This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and

1343(a)(3), and is authorized to order declaratory relief under 28 U.S.C. §§ 2201 and 2202.

11. Venue is proper in the Eastern District of Wisconsin under 28 U.S.C. § 1391(b)

because the claims arose in the District, the parties reside in the District, and all of the events

giving rise to this action occurred in the District.

FACTS

Gender Identity and Gender Dysphoria

12. Sex is a characteristic that is made up of multiple factors, including hormones,

external physical features, internal reproductive organs, chromosomes, and gender identity.

Case 2:16-cv-00943-PP Filed 08/15/16 Page 4 of 36 Document 12

 13. Gender identity—a person’s deeply felt understanding of their own gender—is the

determining factor of a person’s sex. Gender identity is often established as early as two or three

years of age, though a person’s recognition of their gender identity can emerge at any time.

There is a medical consensus that efforts to change a person’s gender identity are ineffective,

unethical, and harmful. A person’s gender identity may be different from or the same as the

person’s sex assigned at birth.

14. The phrase “sex assigned at birth” refers to the sex designation recorded on an

infant’s birth certificate. For most people, gender identity aligns with the person’s sex assigned

at birth, a determination generally based solely on the appearance of a baby’s external genitalia

at birth. For transgender people, however, the gender they were assumed to be at birth does not

align with their gender identity. For example, a transgender boy is a person who was assumed to

be female at birth but is in fact a boy. A transgender girl is a person who was assumed to be a

boy at birth but is in fact a girl.

15. Gender Dysphoria is a condition recognized by the American Psychiatric

Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-5”). It

refers to clinically significant distress that can result when a person’s gender identity differs from

the person’s assumed gender at birth. If left untreated, Gender Dysphoria may result in profound

psychological distress, anxiety, depression, and even self-harm or suicidal ideation.

16. Treatment for Gender Dysphoria is usually pursuant to the Standards of Care for

the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards of

Care”), published by the World Professional Association for Transgender Health (“WPATH”)

since 1980. WPATH is an international, multidisciplinary, professional association of medical

providers, mental health providers, researchers, and others, with a mission of promoting

Case 2:16-cv-00943-PP Filed 08/15/16 Page 5 of 36 Document 12

evidence-based care and research for transgender health, including the treatment of Gender

Dysphoria. WPATH published the seventh and most recent edition of the Standards of Care in

2011.

17. Consistent with the WPATH Standards of Care, treatment for Gender Dysphoria

consists of the person “transitioning” to living and being accepted by others as the sex

corresponding to the person’s gender identity. A key stage in that process is a “social transition,”

in which the individual lives in accordance with his gender identity in all aspects of life. A

social transition, though specific to each person, typically includes adopting a new first name,

using and asking others to use pronouns reflecting the individual’s true gender, wearing clothing

typically associated with that gender, and using sex-specific facilities corresponding to that

gender. Failing to recognize or respect a transgender person’s gender is contrary to established

medical protocols and can exacerbate an individual’s symptoms of Gender Dysphoria.

18. Medical treatments, such as hormone therapy or surgical procedures, may also be

undertaken to facilitate transition and alleviate dysphoria, typically after an individual’s social

transition. Under the WPATH Standards of Care, living full-time in accordance with one’s

gender identity in all aspects of life for at least one year is a prerequisite for any medical

interventions. Medical treatments are not necessary or appropriate in all cases.

19. A social transition requires that a transgender boy be recognized as a boy and

treated the same as all other boys by parents, teachers, classmates, and others in the community.

This includes being referred to exclusively with the student’s new name and male pronouns,

being permitted to use boys’ restrooms and overnight accommodations on the same footing as

other male students, and having the right to keep information about the student’s transgender

status private. Singling out a transgender student and treating him differently than other boys

Case 2:16-cv-00943-PP Filed 08/15/16 Page 6 of 36 Document 12

communicates the stigmatizing message to that student and the entire school community that he

should not be recognized or treated as a boy, simply because he is transgender. This undermines

the social transition and exposes the student to the risk of renewed and heightened symptoms of

Gender Dysphoria such as anxiety and depression. It also frequently leads transgender students

to avoid using school restrooms altogether, often resulting in adverse physical health

consequences such as urinary tract infections, kidney infections, and dehydration, and other

consequences such as stress and difficulty focusing on classwork.

Plaintiff’s Background

20. Ash has been a student in KUSD’s schools since kindergarten. On September 1,

2016, he will begin his senior year at Tremper High. Ash is an excellent student: he has a high

grade point average and is currently ranked in the top five percent of his class of over 400

students. All of his academic classes in his junior year were either Advanced Placement or

Honors level classes. He is also very involved in many school activities, including the school’s

Golden Strings orchestra, theater, tennis team, National Honor Society, and Astronomical

Society. After graduation, he hopes to attend the University of Wisconsin-Madison and study

biomedical engineering. Ash also works part-time as an accounting assistant in a medical office.

21. Ash is a boy. He is also transgender. He was designated “female” on his birth

certificate and lived as a girl until middle school, when he recognized that he is, in fact, a boy,

and he began to experience profound discomfort with being assumed to be a girl by others.

22. At the end of eighth grade, in the spring of 2013, Ash told his parents that he is

transgender and a boy. Shortly thereafter, he told his older brothers.

23. During the 2013-2014 school year, Ash’s freshman year of high school at

Tremper, Ash began confiding to a few close friends that he is a boy. He slowly began

Case 2:16-cv-00943-PP Filed 08/15/16 Page 7 of 36 Document 12

transitioning more publicly to live in accordance with his male identity: he cut his hair short,

began wearing more traditionally masculine clothing, and began to go by a typically masculine

name and masculine pronouns.

24. At the beginning of his sophomore year, in the fall of 2014, Ash told all of his

teachers and peers that he is a boy, requesting that he be referred to using male pronouns and his

new name. On Christmas, 2014, Ash told his extended family, including grandparents, aunts,

uncles, and cousins, that he is a boy.

25. Ash has undertaken his gender transition under the guidance and care of therapists

and medical doctors. He was diagnosed with Gender Dysphoria by his pediatrician. Around the

time of his public transition, Ash began seeing a gender specialist therapist to support him in his

transition. He is currently under the care of clinical psychologist, who is also a gender specialist.

In April 2016, he began consulting with an endocrinologist at Children’s Hospital of Wisconsin

to discuss hormonal therapy. Ash began receiving testosterone treatment under the care of an

endocrinologist in July 2016.

26. Since Ash’s transition at school, he has been widely known and accepted as a boy

by the school community. At a Golden Strings orchestra performance at a hotel on January 17,

2015, Ash wore a tuxedo, just like all the other boys, with the support of his orchestra teacher,

Helen Breitenbach-Cooper. Students and teachers who did not know Ash prior to his transition

did not and would not have recognized him as different from any other boy until the

discriminatory events described in this complaint took place.

KUSD’s Refusal to Permit Plaintiff Access to Restrooms Consistent with His Gender Identity

27. In the spring of 2015, during Ash’s sophomore year, Ash and his mother had

several meetings with Ash’s guidance counselor, Debra Tronvig, during which they requested

Case 2:16-cv-00943-PP Filed 08/15/16 Page 8 of 36 Document 12

that Ash be permitted to use the boys’ restrooms at school. The counselor spoke to the school’s

principal, Richard Aiello, and one of its assistant principals, Brian Geiger, and she advocated that

Ash be permitted to use the boys’ restrooms. However, at a meeting in March 2015, she reported

back to Ash and his mother that the school administrators had decided that Ash would only be

permitted to use the girls’ restrooms or the single-user, gender-neutral restroom in the school

office. Tronvig and the school administrators did not suggest or indicate any circumstance under

which Ash might be permitted to use the boys’ restrooms in the future.

28. After that meeting, Ash felt overwhelmed, helpless, hopeless, and alone. Both of

the restroom options offered by Defendants were discriminatory, burdensome, or unworkable.

Ash was deeply distressed by the prospect of using the girls’ restrooms, as it would hinder and be

at odds with his public social transition at school, undermine his male identity, and convey to

others that he should be viewed and treated as a girl. He was also deeply distressed by the

prospect of using the office restroom, which is located in the rear of the office, behind the office

secretaries’ work stations—far out of the way from most of his classes—and is only used by

office staff and visitors. It is Ash’s understanding that no other students are allowed to use the

office restroom. Ash feared the questions he would face from students and staff about why he

was using that particular restroom; the inconvenience of traveling long distances from (and

missing time in) his classes to use that restroom; and the fact that he would be segregated from

his classmates and further stigmatized for being “different.”

29. At the same time, Ash was fearful of the potential disciplinary consequences if he

failed to comply with the administrators’ directives not to use the boys’ restroom. He worried

that such a disciplinary record could potentially interfere with his ability to get into college, as he

had no prior record of discipline. As a result of that fear and anxiety, seeing no plausible

Case 2:16-cv-00943-PP Filed 08/15/16 Page 9 of 36 Document 12

options, Ash largely avoided using any restrooms at school for the rest of that school year, and,

when absolutely necessary, he only used a single-user girls’ restroom near his theater classroom.

30. In order to avoid using restrooms at school, Ash severely restricted his liquid

intake. This was particularly dangerous because Ash suffers from vasovagal syncope, a medical

condition that results in fainting upon certain physical or emotional triggers. The triggers cause a

person’s heart rate and blood pressure to drop suddenly, reducing blood flow to the brain and

resulting in a loss of consciousness. Because dehydration and stress trigger his fainting episodes,

Ash’s primary care doctor requires him to drink 6-7 bottles of water and a bottle of Gatorade

daily.

31. In addition to vasovagal syncope, Ash also suffers from migraines triggered by

stress. During his sophomore year, while avoiding using restrooms, Ash experienced greatly

heightened symptoms of both vasovagal syncope and stress-related migraines. He also

experienced increased symptoms associated with Gender Dysphoria, including depression,

anxiety, and suicidal thoughts.

32. Ash also worried that the emotional and physical toll caused by the school’s

treatment of him would lead to medical or psychological harm that would delay or make it

unsafe for him to begin hormone treatment as part of his transition. This anxiety further

increased his symptoms of Gender Dysphoria.

33. In July 2015, Ash took a trip to Europe with his school orchestra group, Golden

Strings. In response to Ash’s request to room with other boys, his orchestra teacher,

Breitenbach-Cooper, checked with school administrators and then informed him that he would

not be permitted to do so. Ash felt hurt and embarrassed when he learned of the school’s

decision. Once again, he understood the school’s decision to be based on a perception that he is

10

Case 2:16-cv-00943-PP Filed 08/15/16 Page 10 of 36 Document 12

not really a boy, and he felt degraded and humiliated by the administrators’ continued failure to

recognize and respect his gender identity.

34. As a result of the school’s decision, Ash was forced to share a room with a girl.

During the trip, the students were frequently grouped by gender while traveling between

destinations, and Ash was consistently grouped with girls.

35. In July 2015, while on the trip to Europe, feeling less scrutinized, Ash began to

use male-designated bathrooms. During that trip, Ash saw a news story about a lawsuit against

the Gloucester County School District in Virginia by another transgender student who was

denied access to boys’ restrooms at his high school. That story reported that the U.S.

Department of Justice had concluded that transgender students have the right to use restrooms in

accordance with their gender identity under Title IX and had filed a brief in the Virginia case,

G.G. v. Gloucester County School Board, asserting that the school district’s policy violated

transgender students’ rights under Title IX. Ash was elated to learn that he did, in fact, have the

legally protected right to use the restroom consistent with his gender. For the rest of the trip, Ash

exclusively used male-designated bathrooms, and he continued to do so upon returning to the

United States.

36. When he returned to school for his junior year, in September 2015, Ash continued

exclusively using boys’ restrooms, including at Tremper. He did so for the first seven months of

the school year without any incident. No other students ever made an issue of Ash using the

boys’ bathroom. Ash did not discuss this decision with administrators or teachers, because he

understood it to be his legal right.

37. In late February 2016, after observing Ash using a boys’ bathroom, a Tremper

teacher advised two assistant principals, Geiger and Wendy LaLonde, of that fact. Geiger then

11

Case 2:16-cv-00943-PP Filed 08/15/16 Page 11 of 36 Document 12

informed the other administrators of Ash’s restroom use and asked them what the school’s policy

was.

38. Aiello, LaLonde, Geiger, and the third assistant principal, Holly Graf, agreed that,

although neither KUSD nor Tremper had any existing written policy on students’ restroom

usage, the school’s policy should be that transgender students, including Ash, would not be

permitted to use school restrooms corresponding to their gender identity. Consistent with the

school’s previous decision in spring 2015, they decided that Ash would not be permitted to use

the boys’ restroom and, instead, would only be permitted to use the girls’ restrooms or the single-

user restroom in the school office.

39. Following that decision, Graf emailed Ash’s guidance counselor, Tronvig, and

requested that Tronvig relay the school’s restroom policy to Ash and his mother. Tronvig

responded by email that she did not know what that policy was. Graf and Tronvig then met in

person and Graf explained to Tronvig that Ash would not be permitted to use the boys’

restrooms.

40. In late February 2016, Tronvig called Ms. Whitaker to inform her of the

administration’s decision that Ash would only be permitted to use the girls’ restrooms or the

single-user restroom in the school’s main office.

41. When Ash learned about the school’s decision, in early March 2016, he was

distressed. He felt humiliated and deeply uncomfortable by the idea of using a girls’ restroom,

even more so than the previous year—because he is not a girl, he had not used female-designated

restrooms at school or elsewhere for a long time, and because using the girls’ restrooms as a boy

risked subjecting him to ridicule, scrutiny, stigma, and harassment by other students and school

staff. For the reasons alleged above, he also felt deeply uncomfortable with using the single-user

12

Case 2:16-cv-00943-PP Filed 08/15/16 Page 12 of 36 Document 12

main office restroom. He believed that either alternative would imply his status as a transgender

boy required him to be segregated from other students, despite the fact that he had used the boys’

restrooms regularly and otherwise been treated as a boy by nearly everyone in the school

community for many months.

42. Ash was also afraid of what disciplinary consequences he might face if he failed

to comply with the school’s policy. Faced with two unacceptable options proposed by the school

administrators, Ash continued to use the boys’ restrooms, as he had been doing already. That

approach was the only way Ash felt he could mitigate the physical harm that he would suffer if

he refrained from all restroom use during the school day and during his after-school

extracurricular activities. Because of his active involvement in after-school activities, a typical

school day for Ash lasts from 7 a.m. to 4 or 5 p.m., i.e., 9 or 10 hours. Some activities require

him to be on Tremper’s campus until as late as 10 p.m., a 15-hour day. These long days at

school make avoiding restrooms altogether impossible.

43. Ash’s decision to use the boys’ restroom consistent with his legal right, though in

defiance of school policy, nevertheless exacted an emotional toll. Ash became more depressed

and anxious, grew distracted from his school work, and began to have trouble sleeping.

44. On or about March 10, 2016, Ash and his mother met with Graf and Tronvig.

During that meeting, Graf referred to Ash exclusively by his birth name. In that meeting, Graf

told Ms. Whitaker that the reason Ash could not use the boys’ restrooms was because he could

only use restrooms consistent with his gender as listed in the school’s official records. Graf said

that the only way the school could change Ash’s gender in its records would be if the school

received legal or medical documentation confirming his transition to male.

13

Case 2:16-cv-00943-PP Filed 08/15/16 Page 13 of 36 Document 12

 45. Ms. Whitaker explained that, to her knowledge, Ash was too young for transition-

related surgery. Graf repeated that the school would need some kind of medical documentation,

but declined to indicate what type of medical “documentation” would be sufficient to

demonstrate that Ash’s gender marker should be changed on his school records and that he could

use boys’ restrooms.

46. In response, Ms. Whitaker contacted Ash’s pediatrician. The pediatrician faxed a

letter to the school on or about March 11, 2016, confirming that Ash is a transgender boy and

recommending that Ash be allowed to use male-designated facilities at school. At Ms.

Whitaker’s request, the pediatrician subsequently sent the school a second letter, reiterating her

recommendation about Ash’s restroom usage.

47. Despite the letters from Ash’s doctor, Aiello emailed Ms. Whitaker that the

school would continue to deny boys’ restroom access to Ash because he had not completed a

medical transition.

48. Ash continued to use the boys’ restrooms when needed, but he mainly attempted

to avoid using restrooms altogether by not drinking or eating while at school, in order to avoid

the scrutiny, fear, and humiliation he faced when he had to use a restroom at school. His anxiety

and depression increased further. He also experienced increased physical symptoms relating to

his vasovagal syncope, including dizziness, nearly fainting, and migraines. Ash returned to see

his pediatrician in late March 2016 to have his symptoms evaluated. The pediatrician again

instructed him to eat and drink regularly to avoid those symptoms. Nonetheless, Ash was unable

to comply with those instructions, out of fear of using the restrooms at school. Concerned about

his physical health, his mother would regularly hand him a bottle of water and tell him to drink it

14

Case 2:16-cv-00943-PP Filed 08/15/16 Page 14 of 36 Document 12

to avoid dehydration, and he would refuse, saying that he did not want to have to use the

restroom.

49. On or about March 17, 2016, Geiger observed Ash as he entered a boys’

restroom, and reported that fact to Graf. Minutes later, Graf insisted that Ash leave his acting

class and come to her office, and met with him alone for half an hour, lecturing him about his use

of the boys’ restrooms.

50. During that same meeting, Graf asked Ash why he was not using the girls’

restroom or single-user restroom as directed. He informed her that the school’s policy violated

his rights as a transgender student under Title IX. When Ash made clear he could not use girls’

restrooms because he is not a girl, she again asked him to compromise and use the single-user

restroom in the main office. He again refused because of the humiliation, stigma, and lost class

time that he would face using that bathroom. Graf then reiterated her instruction that Ash cease

his use of boys’ restrooms.

51. During that March 17 meeting—as well as at virtually all other times—Graf

consistently referred to Ash using his traditionally female birth name and female pronouns,

despite Ash’s request that she use his new name and male pronouns. In that meeting, when Ash

became upset by Graf’s restroom directive and refusal to respect his male gender, Graf said, “S--

----, calm down,” using his birth name. Ash, angry and embarrassed, said, “No, I’m leaving,”

and left the office.

52. During that meeting, Graf directly threatened that Ash would be subject to

disciplinary action if he continued to use the boys’ restrooms. Specifically, she indicated Ash

would have to “go down to 109 or 203”—referring to Room 109, the in-school suspension room,

and Room 203, the school’s disciplinary office.

15

Case 2:16-cv-00943-PP Filed 08/15/16 Page 15 of 36 Document 12

 53. Following the meeting with Graf, Ash began to cry in the hallway. He had

difficulty concentrating in his classes for the remainder of the day, holding back tears. He

skipped work that afternoon and did not do any homework. Instead, he just went home after

school and lay in bed feeling terrible.

54. When he absolutely needed to use the restroom, Ash continued to use the boys’

restrooms exclusively through June 9, 2016, the final day of the school year. As a result, Graf

continued to call Ash, his mother, or both into her office for periodic meetings. At those

meetings, Graf would inquire about Ash’s restroom use, and, when told he was still using the

boys’ restrooms, would repeat the school’s policy that he must use the girls’ restroom or a

single-user restroom. During these meetings, Graf continued to refer to Ash by his birth name

and female pronouns.

55. Ash grew increasingly embarrassed by Graf’s repeated inquiries about his

restroom use, which he felt to be an invasion of his privacy. Since each meeting with

administrators occurred during class time, Ash was also concerned about the effect of these

repeated meetings on his academic performance and feared that he would face scrutiny from

other students and teachers about why he was being removed from class so frequently. Ash, who

continued to have no disciplinary record at the school, also became more worried about the

increasingly real prospect of disciplinary consequences that might affect his ability to participate

in extracurricular activities and negatively impact his college application process in the

upcoming school year.

56. In April 2016, Ms. Whitaker learned that school administrators had sent an email

to all of the school’s security guards, instructing them to notify administrators if they spotted any

16

Case 2:16-cv-00943-PP Filed 08/15/16 Page 16 of 36 Document 12

students who appear to be going into the “wrong” restroom. Individual security guards later told

Ms. Whitaker that they understood the directive to be targeted at Ash.

57. Ash felt very uncomfortable and distressed knowing that security guards and

administrators were actively monitoring his restroom use.

58. On April 5, 2016, Ms. Whitaker was pulled out of her Tremper classroom and

summoned to a meeting with two KUSD district-level administrators: Dr. Bethany Ormseth,

KUSD’s Chief of School Leadership, and Susan Valeri, KUSD’s Chief of Special Education and

Student Support.

59. In that meeting, Ms. Whitaker asked Ormseth and Valeri whether KUSD had

adopted any policy concerning transgender students and restroom use. They provided no answer

to Ms. Whitaker’s question, other than to say that a policy was in the process of being created by

a committee of the school board. Ms. Whitaker responded, “You don’t need a policy—it’s a

federal law.” Later in the school year, Ms. Whitaker learned that Rebecca Stevens, a KUSD

school board member, had contradicted Ormseth and Valeri’s account, stating to another board

member that no committee had yet been formed and no policy was being written.

60. In fact, despite repeated requests by Ms. Whitaker to see the written policy about

transgender students’ restroom use during the course of the 2015-2016 school year, no Tremper

or KUSD official has ever provided such a policy. Ms. Whitaker reasonably believes no such

policy exists. Rather, the Tremper administration developed and enforced a school “policy” in

direct and specific response to those administrators’ discomfort with the restroom usage of one

student: Ash.

61. The next day, on April 6, 2016, Ash and Ms. Whitaker attended a meeting with

Aiello, Graf, and Valeri. At that meeting, the administrators offered Ash a further

17

Case 2:16-cv-00943-PP Filed 08/15/16 Page 17 of 36 Document 12

“accommodation” regarding his restroom use: they informed him that he would also be allowed

to use two single-user restrooms located on the far opposite sides of campus. Those restrooms

had previously been available for any student’s use, but new locks had been installed and Ash

alone was given the key to open them. The stigma of being assigned personal, segregated

restrooms—to which he alone of all the 1,695 students in the building had a key—caused Ash

additional significant emotional distress. In addition, neither of these single-occupancy

restrooms was convenient to Ash’s classes and would have required him to miss more class time

than his peers if he used those restrooms during class.

62. At the April 6 meeting, Ash asked Valeri for KUSD’s rationale for prohibiting his

use of the boys’ restrooms. Valeri replied with a statement to the effect of, “Well, we’ve never

had a student who identifies as male but was born female.”

63. Ash replied by asserting that Title IX prohibits discrimination based on sex,

which protects transgender students and requires schools to permit them to use restrooms

consistent with the student’s gender identity.

64. Valeri denied that Title IX protects transgender students’ access to bathrooms

consistent with their gender identity.

65. When Ash asked Valeri to explain her understanding of Title IX, she refused to

do so, stating words to the effect of, “I don’t think I’m going to give you any reasons.”

66. In order to avoid disciplinary sanctions from Tremper administrators for using

boys’ restrooms on the one hand, and the scrutiny and embarrassment that would result from

using individually assigned restroom facilities on the other, Ash continued to avoid using school

restrooms as much as possible. He has never used the designated locked single-user restrooms,

as doing so would call unwanted attention to himself by using a key to enter a restroom to which

18

Case 2:16-cv-00943-PP Filed 08/15/16 Page 18 of 36 Document 12

no other student has access, and because of his desire not to spend unnecessary time out of class

traveling to those inconveniently located restrooms.

67. As a result of the stress caused by the school’s discriminatory actions, and his

attempts to avoid using any restrooms at school, Ash’s migraines and episodes of fainting and

dizziness continued to worsen. His depression, anxiety, and dysphoria also deepened. He became

severely depressed and lethargic, and no longer wanted to get out of bed in the morning.

68. Due to the serious consequences the school’s actions were having on Ash’s

physical and psychological well-being, he considered withdrawing from Tremper and

transferring to an online school to finish high school. He ultimately decided not to withdraw at

that time, due to his involvement in activities like the school orchestra that would not be

available if he were enrolled in an online school, and because changing schools would put him

further behind in his classwork.

School’s Refusal to Permit Ash to Be Considered for Junior Prom King

69. Tremper High’s junior prom was scheduled for May 7, 2016. In late March, the

faculty advisor for the junior prom, Lorena Danielson, submitted the names of candidates for the

prom court to Aiello. Candidates for prom king and queen are required to earn volunteer hours

in order to participate and whoever earns the most hours is selected for prom court. Based on his

community service hours, the junior prom advisor designated Ash as a candidate for prom king

and then met with Aiello to confirm the list.

70. After meeting with the junior prom advisor, Aiello called Ms. Whitaker in for a

meeting with him and Graf on or about March 22, 2016, during which he told her that Ash could

be on the prom court, but could only be a candidate for prom queen, not prom king. When Ash

learned about this, he was devastated. He was humiliated at the prospect of running for prom

19

Case 2:16-cv-00943-PP Filed 08/15/16 Page 19 of 36 Document 12

queen, when all his classmates knew him to be a boy. He felt deeply disrespected and angry that

the administrators failed to recognize how hurtful and unfair this additional form of

discrimination was.

71. On April 4, 2016, Ash and his friends presented a MoveOn.org petition to

Tremper administrators demanding that Ash be allowed to run for prom king and to use the boys’

restrooms at school, which was signed by many members of the Tremper community and

thousands of others around the country. When administrators failed to respond, on April 5,

2016, 70 students participated in a sit-in at Tremper’s main office to show their support for Ash.

The students held signs expressing the view that transgender students should be treated equally,

and supporting Ash’s right to be allowed to run for prom king and to use the boys’ restrooms at

school.

72. Following the sit-in and media attention about KUSD’s treatment of Ash, in the

April 6, 2016 meeting referenced above, Aiello, Graf, and Valeri informed Ash and Ms.

Whitaker that Ash would be permitted to run for prom king.

73. Although Ash was pleased to have the opportunity to run for prom king and

heartened by the outpouring of support from his classmates, he continued to feel deeply

distressed as a result of the school administrators’ initial decision that he could only run for prom

queen and their continued pattern of refusing to recognize or respect his male gender identity.

Name and Gender in School Records

74. KUSD has not changed Ash’s name on his official records and other documents,

including classroom attendance rosters used by his teachers. Although most of Ash’s teachers

refer to him by his male name, substitute teachers have frequently referred to him by his birth

name in front of his classmates because that is the name that appears on the attendance rosters.

20

Case 2:16-cv-00943-PP Filed 08/15/16 Page 20 of 36 Document 12

In response, and in order to avoid embarrassment or discomfort from his classmates, Ash has

been compelled to approach all of his teachers at the beginning of each term to advise them of

his preferred name and pronouns and request that they do not refer to him by his birth name. He

similarly must approach substitute teachers before class every time a teacher is absent. Although

some teachers note his correct name on the class roster, others have not documented that name

on the roster, and occasionally substitute teachers still refer to him by his birth name in class.

Being called a traditionally female name in front of all his classmates reveals that he is

transgender to all of his peers and makes Ash feel embarrassed and distressed. The practice has

resulted in Ash experiencing increased symptoms of Gender Dysphoria, including anxiety and

depression.

75. In the meetings with administrators on March 6 and March 22, Ms. Whitaker

requested that the school change Ash’s name and gender in its official records to avoid those

problems. In both meetings, Graf told Ms. Whitaker that in order to change Ash’s name or

gender in the school’s official records, the school would need to see legal or medical

documentation. The medical documentation Ash’s pediatrician sent was deemed insufficient,

although Graf and Aiello refused to specify what the contents of acceptable documentation

would be, despite repeated requests for clarification. They also failed to specify what type of

“legal documentation” would be necessary to update the school records.

76. In August 2016, Ash filed a petition in Kenosha county court seeking a court-

ordered name change, which is pending as of the date of this Amended Complaint. Even if

KUSD is unable to change Ash’s name or gender in its official school records because Ash has

not yet obtained a legal name change, KUSD can and should take steps to avoid intentional or

inadvertent disclosure of Ash’s birth name or sex assigned at birth to KUSD employees or

21

Case 2:16-cv-00943-PP Filed 08/15/16 Page 21 of 36 Document 12

students, including by modifying informal or public-facing documents, such as attendance

rosters, to reflect Ash’s male name and male gender.

Other Harassing and Stigmatizing Treatment Faced by Ash at School

77. After news broke about the petition for Ash to run for prom king and use boys’

restrooms at school, some parents and other Kenosha residents began to speak out in opposition

to Ash’s right to use boys’ restrooms. On May 10, 2016, shortly after the junior prom, at a

meeting of the Board, several community members spoke in opposition to allowing transgender

students to use restrooms in accordance with their gender identity. One parent told the Board

that he was opposed to permitting transgender students to use gender-appropriate restrooms

because such a policy would permit sexual predators to enter women’s restrooms and put his

daughters at risk.

78. That person’s wife, who volunteers as a pianist with the school orchestra, has

created and maintains a public Facebook group called “KUSD Parents for Privacy,” which

contains numerous posts critical of transgender students’ rights. Several posts on that page have

mentioned Ash and his mother by name, accompanied by their photographs. One post, on May

14, 2016, linked to an article about Ash, contains a photograph of him and his mother, and

describes him as a “pawn.”

79. At an orchestra rehearsal at the school on May 11, 2016, the day following the

Board meeting at which her husband spoke, this woman approached Ash, put her hands on his

shoulders, and said words to the effect of, “A----, honey, this isn’t about you, this is bigger than

you. I’m praying for you.” Ash was extremely uncomfortable and embarrassed, and did not

respond. Ms. Whitaker and Ash later brought this incident to Aiello’s attention. Aiello

requested that Breitenbach-Cooper, the orchestra teacher, call the volunteer to advise her not to

22

Case 2:16-cv-00943-PP Filed 08/15/16 Page 22 of 36 Document 12

talk to students like that, but took no further action. Nothing changed as a result. She is still a

regular volunteer with the school orchestra and has continued to attend every rehearsal. Her

constant presence substantially diminishes Ash’s enjoyment of an extracurricular activity that

has formed an important part of his educational experience at Tremper.

Green Wristbands to Mark Transgender Students

80. In May 2016, Ash’s guidance counselor, Tronvig, showed Ms. Whitaker what

appeared to be a bright green wristband (comprised of green adhesive stickers). Tronvig told

Ms. Whitaker that a school administrator had given her these wristbands with the instruction that

they were to be given to any student who identified himself or herself as transgender. Ms.

Whitaker understood this to mean that the school intended to use the wristbands to mark students

who are transgender and monitor their restroom usage. Upon information and belief, other

guidance counselors were also provided these wristbands and instructed them to give them to

transgender students.

81. Branding transgender students in this way would single them out for additional

scrutiny, stigma, and potentially harassment or violence, and violate their privacy by revealing

their transgender status to others.

82. Upon learning about the school’s proposed green wristband practice, Ash felt

sickened and afraid. He was aware of the prevalence of violent attacks against transgender

people nationwide, and grew very afraid that the school would attempt to force him to wear the

wristband on penalty of discipline. If he did wear the wristband, he knew that other students

would likely ask him repeatedly why he was wearing it, and he would have to explain over and

over that he is transgender. He expected that some students would stare, and others would

outright ridicule him. He felt like his safety would be even more threatened if he had to wear

this visible badge of his transgender status.

23

Case 2:16-cv-00943-PP Filed 08/15/16 Page 23 of 36 Document 12

 83. To Plaintiff’s knowledge, the green wristband practice proposed at the end of the

school year may be implemented in the new school year, such that guidance counselors will be

expected to provide these wristbands to transgender students in the upcoming school year.

Overnight Accommodations at Summer Orchestra Camp

84. Ash participated in a five-day, school-sponsored summer orchestra camp from

June 12-16, 2016. The camp was held on the campus of the University of Wisconsin-Oshkosh,

and students stayed in dormitories on campus. The dorms used for the camp were suites with

two to four bedrooms and a common living room, kitchenette, and two single-occupancy

restrooms. Each suite had either four separate, single-occupancy bedrooms, or two double-

occupancy rooms. During the evenings, school chaperones placed tape across each of the

bedroom doorways to prevent students from leaving the bedrooms at night. The suites were

designated either male or female.

85. In advance of the camp, the school allowed students to sign up for dorm rooms

with their friends. Ash had signed up to stay in a boys’ suite with one of his best friends, a male

student.

86. Breitenbach-Cooper, the orchestra teacher, told Aiello about Ash’s request to stay

in the same suite as his friend and other male students. Aiello replied that Ash could not do so

because, under Tremper’s policy, he could not stay with other boys. Aiello told Breitenbach-

Cooper that Ash would have to stay in a suite with girls or alone in a suite, segregated from all of

his peers.

87. In order to participate in the orchestra camp, Ash reluctantly agreed to stay in

double-bedroom suite all alone, with no other students sharing the suite. He rejected the

“option” to stay in a suite with girls because he is a boy and he felt uncomfortable staying with

girls.

24

Case 2:16-cv-00943-PP Filed 08/15/16 Page 24 of 36 Document 12

 88. This arrangement excluded Ash from socializing with other students during the

entire five-day camp. Students were prohibited from entering other suites, and could only

socialize within their own suite or in common areas of the building. Since almost all the other

students remained in their suites to socialize in the evenings, Ash stayed in his room alone each

evening while the other students enjoyed time to socialize with their friends. He felt lonely and

depressed, and disappointed that he was not able to have the same good memories of his final

year at camp as all the other students.

89. The school’s decision to segregate Ash from the other boys also left him feeling

hurt and embarrassed. He understood the school’s decision to be based on a perception that he

might engage in sexual activity with another boy, and he felt degraded and humiliated by the

idea that administrators were thinking about him in those terms.

District’s Failure to Change its Discriminatory Policies after Notice of Legal Obligations

90. Ash and Ms. Whitaker have repeatedly advised KUSD officials that their actions

violate Ash’s right to attend school free from sex discrimination, as required by Title IX and the

Equal Protection Clause. Despite being put on notice of the violations of Ash’s statutory and

constitutional rights, KUSD has refused to change its policies to date.

91. On April 19, 2016, through his attorneys, Ash sent a letter to Superintendent

Savaglio-Jarvis demanding that KUSD permit him to use boys’ restrooms at school.

92. By letter of April 26, 2016, KUSD’s attorneys responded, acknowledging their

awareness of U.S. Department of Education guidance documents interpreting Title IX to protect

students from discrimination based on their gender identity—as well as the Fourth Circuit’s

April 19, 2016 opinion in G.G. v. Gloucester County School Board, a Title IX case brought by a

transgender high school student who was denied access to boys’ restrooms at school, in which

25

Case 2:16-cv-00943-PP Filed 08/15/16 Page 25 of 36 Document 12

that appeals court deferred to the Department of Education’s interpretation of Title IX and held

that the plaintiff student was entitled to restroom access consistent with his gender identity. The

letter nevertheless maintained that KUSD is not bound by these authorities and would not change

its position on Ash’s restroom use.

93. On May 12, 2016, Ash filed an administrative complaint with the U.S.

Department of Education Office for Civil Rights (“OCR”), alleging that KUSD’s actions

violated Ash’s rights under Title IX. Shortly before filing this lawsuit, Plaintiff’s attorneys

contacted OCR and requested to withdraw that complaint, without prejudice.

94. On May 13, 2016, the U.S. Department of Education and U.S. Department of

Justice issued a joint guidance letter to all public schools, colleges, and universities in the

country receiving Federal financial assistance, reiterating the federal government’s previously

stated position that, pursuant to Title IX, all public schools are obligated to treat transgender

students consistent with their gender identities in all respects, including regarding name and

pronoun usage, restroom access, and overnight accommodations.

95. Following the issuance of the federal guidance on May 13, 2016, KUSD officials

publicly acknowledged the guidance but stated that they did not believe they were required to

comply with it. KUSD issued a statement declaring, “[t]he Department of Education’s . . . letter

is not law; it is the Department’s interpretation of the law,” suggesting that it would not change

its policy absent a court order.

96. To date, the Board has not articulated or adopted any formal policy regarding

transgender students in KUSD’s schools.

26

Case 2:16-cv-00943-PP Filed 08/15/16 Page 26 of 36 Document 12

 97. Based on the statements and actions of KUSD officials, Ash feels deep anxiety

and dread about experiencing continued discrimination during his senior year and the effect that

it will have on him during the college application process.

INJURY TO PLAINTIFF

98. Through their actions described above, Defendants have injured and are

continuing to injure Plaintiff.

99. Defendants have denied Ash full and equal access to KUSD’s education programs

and activities by denying him the full and equal access to student restrooms and overnight

accommodations during school-sponsored trips offered to other male students.

100. Ash has experienced and continues to experience the harmful effects of being

segregated from, and treated differently than, his male classmates at school and during school-

sponsored events, including lowered self-esteem, embarrassment, social isolation, and stigma, as

well as heightened symptoms of Gender Dysphoria, including depression and anxiety.

101. When school administrators and staff intentionally used his birth name or female

pronouns (or allowed others to do so), instructed him not to use the boys’ restrooms, instructed

security personnel to surveil his movements, and otherwise undermined his male identity and

singled him out as different from all other boys, he has felt deeply hurt, disrespected, and

humiliated.

102. Defendants’ discriminatory actions, and the efforts Ash has made to comply with

the directive not to use the boys’ restroom—limiting food and drink while at school—have led to

a host of physical symptoms, including dehydration, dizziness, fainting, and migraines. All of

those symptoms virtually disappeared once Ash returned home from the orchestra camp and

27

Case 2:16-cv-00943-PP Filed 08/15/16 Page 27 of 36 Document 12

summer break began, and Ash was no longer facing daily scrutiny and anxiety and could eat and

drink at a healthy level.

103. As a direct and continuing result of Defendants’ discriminatory actions, Ash has

suffered increased and continuing emotional distress over the last six months. He has

experienced escalating symptoms of depression and anxiety, and his self-esteem has suffered, as

a result of the discrimination he has experienced at school. Although he cried very little in the

past, he frequently cries and fights back tears.

104. As a result of the depression and anxiety Defendants’ actions caused, Ash has also

had difficulty eating and sleeping properly, and difficulty concentrating in classes and on his

homework.

105. As a result of Defendants’ actions, and the feelings of fear and scrutiny he has

grown used to, Ash now feels unsafe being outside of the house, afraid that he will be targeted

for an assault by someone who knows he is transgender. He will typically only go out in groups

of friends, and tries to avoid ever going out with only one other friend or alone.

106. Ash has also missed significant class time due to being compelled by KUSD

officials to participate in repeated, lengthy meetings during class time to discuss his use of

restrooms, his name and gender in school records, and the school’s determination that he would

be prohibited from running for prom king.

107. All of the above discriminatory treatment has undermined the efficacy of the

social transition component of his gender transition and heightened his symptoms of Gender

Dysphoria.

108. If Defendants refuse to grant Ash access to boys’ restrooms by the time his senior

year begins on September 1, 2016, he will likely experience the same social stigma, emotional

28

Case 2:16-cv-00943-PP Filed 08/15/16 Page 28 of 36 Document 12

distress, academic harm, and detrimental impediments to his gender transition resulting from

Defendants’ conduct that he experienced during his junior year.

CAUSES OF ACTION

First Cause of Action

Violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.

109. Plaintiff realleges and incorporates the facts and allegations contained in

paragraphs 1 through 108 as fully set forth herein.

110. Under Title IX and its implementing regulations, “[n]o 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.” 20 U.S.C. § 1681(a); see also 34 C.F.R. § 106.31 (Department of Education Title IX

regulations); 7 C.F.R. § 15a.31 (Department of Agriculture Title IX regulations); 45 C.F.R.

§ 86.31 (Department of Health and Human Services Title IX regulations). Title IX’s

prohibitions on sex discrimination extend to “any academic, extracurricular, research,

occupational training, or other education program or activity operated by a recipient” of federal

funding. 34 C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31.

111. Title IX’s prohibition on discrimination “on the basis of sex” encompasses

discrimination based on an individual’s gender identity, transgender status, and gender

expression, including nonconformity to sex- or gender-based stereotypes.

112. Conduct specifically prohibited under Title IX includes, inter alia, treating one

person differently from another in determining whether such person satisfies any requirement or

condition for the provision of such aid, benefit, or service; providing different aid, benefits, or

services in a different manner; denying any person any such aid, benefit, or service; or otherwise

29

Case 2:16-cv-00943-PP Filed 08/15/16 Page 29 of 36 Document 12

subjecting any person to separate or different rules of behavior, sanctions, or other treatment. 34

C.F.R. § 106.31; 7 C.F.R. § 15a.31; 45 C.F.R. § 86.31.

113. As a Federal funding recipient, Defendant Kenosha Unified School District No. 1

Board of Education, including the academic, extracurricular, and other educational opportunities

provided by the Kenosha Unified School District and Tremper High School, is subject to Title

IX’s prohibitions on sex- and gender-based discrimination against any student.

114. As set forth in paragraphs 28 to 98 above, Defendants, by adopting and enforcing

a policy or practice of prohibiting Plaintiff, a transgender boy, from accessing male-designated

restrooms at school, and requiring that he use female-designated restrooms or single-occupancy

restrooms, have discriminated and continue to discriminate against Plaintiff in his enjoyment of

KUSD’s education program and activities by treating him differently from other male students

based on his gender identity, the fact that he is transgender, and his nonconformity to male

stereotypes, and thereby denying him the full and equal participation in, benefits of, and right to

be free from discrimination in the educational opportunities offered by KUSD and Tremper High

School, on the basis of sex, in violation of Title IX.

115. Defendants, by adopting and enforcing a policy or practice of prohibiting

Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on

school-sponsored trips, and requiring him to stay in female-designated overnight

accommodations or segregated accommodations on those trips, has discriminated and continues

to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by

treating him differently from other male students based on his gender identity, the fact that he is

transgender, and his nonconformity to male stereotypes, and thereby denying him the full and

equal participation in, benefits of, and right to be free from discrimination in the educational

30

Case 2:16-cv-00943-PP Filed 08/15/16 Page 30 of 36 Document 12

opportunities offered by KUSD and Tremper High School, on the basis of sex, in violation of

Title IX.

116. Defendants have further violated Title IX by failing to recognize fully and respect

Plaintiff, a transgender boy, as a male student, including through administrators’ repeated and

intentional use of Plaintiff’s traditionally female birth name and female pronouns to address him

and refer to him to others; the failure to take necessary and appropriate action to update or

modify Ash’s official and/or informal student records, including classroom attendance rosters, to

prevent teachers, substitute teachers, and other school staff from referring to him by his female

birth name and female pronouns in the presence of other students; Tremper administrators’ initial

refusal to permit Ash to run for junior prom king and directive that he run for prom queen

instead, withdrawn only after a student protest and media attention; and Tremper administrators’

instruction to school guidance counselors to provide green wristbands to transgender students.

Through these actions, individually and collectively, Defendants have and continue to exclude

Plaintiff from participation in, deny him the benefits of, and subject him to discrimination in

KUSD’s education programs and activities, on the basis of sex, in violation of Title IX.

117. Defendants, through instructing Tremper staff to report the restroom use of any

student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice

of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or

gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their

rights under Title IX to be free from discrimination on the basis of sex, including on the basis of

gender identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in

further violation of Title IX.

31

Case 2:16-cv-00943-PP Filed 08/15/16 Page 31 of 36 Document 12

 118. Plaintiff has been, and continues to be, injured by Defendants’ discriminatory

conduct and has suffered damages as a result.

Second Cause of Action

Violation of 42 U.S.C. § 1983 Based on
Deprivation of Plaintiff’s Rights under the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution

119. Plaintiff realleges and incorporate the facts and allegations contained in

paragraphs 1 through 108 as fully set forth herein.

120. Under the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution, discrimination based on sex, including gender, gender identity, transgender

status, and nonconformity to sex- or gender-based stereotypes, as well as discrimination based on

transgender status alone, is presumptively unconstitutional and is therefore subject to heightened

scrutiny.

121. Defendants, by adopting and enforcing a policy or practice of prohibiting

Plaintiff, a transgender boy, from accessing male-designated restrooms at school, and requiring

that he use female-designated restrooms or single-occupancy restrooms, have discriminated and

continue to discriminate against Plaintiff in his enjoyment of KUSD’s education program and

activities by treating him differently from other male students based on his gender identity, the

fact that he is transgender, and his nonconformity to male stereotypes, thereby denying him the

full and equal participation in, benefits of, and right to be free from discrimination in the

educational opportunities offered by KUSD and Tremper High School, on the basis of sex and

transgender status, in violation of the Equal Protection Clause.

122. Defendants, by adopting and enforcing a policy or practice of prohibiting

Plaintiff, a transgender boy, from staying in male-designated overnight accommodations on

school-sponsored trips, and requiring him to stay in female-designated overnight

32

Case 2:16-cv-00943-PP Filed 08/15/16 Page 32 of 36 Document 12

accommodations or segregated accommodations on those trips, has discriminated and continues

to discriminate against Plaintiff in his enjoyment of KUSD’s education program and activities by

treating him differently from other male students based on his gender identity, the fact that he is

transgender, and his nonconformity to male stereotypes, thereby denying him the full and equal

participation in, benefits of, and right to be free from discrimination in the educational

opportunities offered by KUSD and Tremper High School, on the basis of sex and transgender

status, in violation of the Equal Protection Clause.

123. Defendants have further violated Plaintiff’s rights under the Equal Protection

Clause by failing to recognize fully and respect Plaintiff, a transgender boy, as a male student,

including through administrators’ repeated and intentional use of Plaintiff’s traditionally female

birth name and female pronouns to address him and refer to him to others; the failure to take

necessary and appropriate action to update or modify Ash’s official and/or informal student

records, including classroom attendance rosters, to prevent teachers, substitute teachers, and

other school staff from referring to him by his female birth name and female pronouns in the

presence of other students; Tremper administrators’ initial refusal to permit Ash to run for junior

prom king and directive that he run for prom queen instead, withdrawn only after a student

protest and media attention; and Tremper administrators’ instruction to school guidance

counselors to provide green wristbands to any student who identified himself or herself as

transgender. Through these actions, individually and collectively, Defendants have and continue

to exclude Plaintiff from participation in, deny him the benefits of, and subject him to

discrimination in KUSD’s education programs and activities, on the basis of sex and transgender

status, in violation of the Equal Protection Clause.

33

Case 2:16-cv-00943-PP Filed 08/15/16 Page 33 of 36 Document 12

 124. Defendants, through instructing Tremper staff to report the restroom use of any

student who “appears” to be using the “wrong” restroom, operates an unlawful policy or practice

of profiling Plaintiff and other students who are transgender and/or do not conform to sex- or

gender-based stereotypes, and thereby deprive Plaintiff and similarly situated students of their

rights to be free from discrimination on the basis of sex, including on the basis of gender

identity, transgender status, and nonconformity to sex- or gender-based stereotypes, in further

violation of the Equal Protection Clause.

125. Defendants’ discrimination against Ash is not substantially related to any

important governmental interest, nor is it rationally related to any legitimate governmental

interest.

126. Defendants are liable for their violation of Ash’s Fourteenth Amendment rights

under 42 U.S.C. § 1983.

127. Plaintiff has been, and continues to be, injured by Defendants’ conduct and has

suffered damages as a result.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Ash Whitaker, by and through his mother and next friend,

Melissa Whitaker, requests that this Court:

(a) enter a declaratory judgment that the actions of Defendants complained of herein

are in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and

the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;

(b) issue preliminary and permanent injunctions (i) directing Defendants to provide

Plaintiff access to male-designated restrooms at school, and otherwise to treat him as a boy in all

respects for the remainder of his time as a student in Defendants’ schools or until resolution of

34

Case 2:16-cv-00943-PP Filed 08/15/16 Page 34 of 36 Document 12

this lawsuit, whichever is later; (ii) restraining Defendants, their agents, employees,

representatives, and successors, and any other person acting directly or indirectly with them,

from adopting, implementing, or enforcing any policy or practice at the school or District level

that treats transgender students differently from their similarly situated peers (i.e., treating

transgender boys differently from other boys and transgender girls differently from other girls);

(iii) directing Defendants to clarify that KUSD and Tremper’s existing policies prohibiting

discrimination on the basis of sex apply to discrimination based on gender identity, transgender

status, and nonconformity to sex- and gender-based stereotypes; (iv) ordering Defendants to

provide training to all district-level and school-based administrators in the Kenosha Unified

School District on their obligations under Title IX and the Equal Protection Clause regarding the

nondiscriminatory treatment of transgender and gender nonconforming students; and (v)

ensuring that all district-level and school-based administrators responsible for enforcing Title IX,

including Defendants’ designated Title IX coordinator(s), are aware of the correct and proper

application of Title IX to transgender and gender nonconforming students;

(c) order all compensatory relief necessary to cure the adverse educational effects of

Defendants’ discriminatory actions on Plaintiff’s education;

(d) award compensatory damages in an amount that would fully compensate Plaintiff

for the emotional distress and other damages that have been caused by Defendants’ conduct

alleged herein;

(e) award Plaintiff his reasonable attorneys’ fees and costs pursuant to 42 U.S.C.

§ 1988; and

(f) order such other relief as this Court deems just and equitable.

35

Case 2:16-cv-00943-PP Filed 08/15/16 Page 35 of 36 Document 12

Dated: August 15, 2016

Respectfully submitted,
/s Joseph J. Wardenski
Ilona M. Turner* Joseph J. Wardenski
Alison Pennington* Michael Allen**
Sasha J. Buchert* RELMAN, DANE & COLFAX PLLC
Shawn Thomas Meerkamper* 1225 19th Street, NW, Suite 600
TRANSGENDER LAW CENTER Washington, DC 20036
1629 Telegraph Avenue, Suite 400 Phone: (202) 728-1888
Oakland, CA 94612 Fax: (202) 728-0848
Phone: (415) 865-0176 [email protected]
Fax: (877) 847-1278 [email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Robert (Rock) Theine Pledl

PLEDL & COHN, S.C.
1110 N. Old World Third Street, Suite 215
Milwaukee, WI 53203
Phone: (414) 225-8999
Fax: (414) 225-8987
[email protected]

* Application for admission to this Court to follow

** Application for admission to this Court pending

36

Case 2:16-cv-00943-PP Filed 08/15/16 Page 36 of 36 Document 12