This article is co-authored by partner Andrew Adelman and JGL law clerk Paul Johnson.
On September 8, 2026, a Wisconsin federal district court in Doe v. Mukwonago Area School District determined that a school policy prohibiting students from using school bathrooms consistent with their gender identity may violate the Equal Protection Clause. This comes as courts continue to address ongoing litigation over transgender students’ access to school bathrooms following the Supreme Court’s decisions in United States v. Skrmetti and West Virginia v. B.P.J. ex rel. Jackson. In both cases, the Supreme Court held that laws limiting the rights of transgender youth (addressing access to gender affirming care and school sports teams, respectively) did not violate the Equal Protection Clause’s prohibition against sex discrimination. The court in Mukwonago, however, found that a policy prohibiting students from using bathrooms consistent with their gender identity did classify on the basis of sex and, therefore, could violate the Constitution if the policy’s purpose was not related to an important governmental interest. This decision continues to highlight the continuing fight to ensure that transgender people, and specifically youth, can live authentically.
The Challenge to Mukwonago’s Bathroom Access Policy
At the center of this case is Jane Doe, an 11-year-old transgender girl who has identified as a girl from a young age and had used the girls’ bathroom at school for most of her elementary school education in the Mukwonago Area School District. After receiving complaints from the parents of other students about Jane’s bathroom use, the district superintendent told Jane that she was prohibited from using the girls’ bathrooms. Jane, however, continued to use the girls’ bathroom, which led staff to monitor her bathroom use, remove her from class, and remind her to use the boys’ bathroom or the gender-neutral bathrooms. On June 26, 2023, the district formally adopted a policy that required students to use restrooms and locker rooms corresponding to their “original sex assigned at birth,” although it permitted exceptions or accommodations on a case-by-case basis. The school refused to provide Jane with an exception to the policy. After Jane Doe filed a lawsuit, the federal district court and the Seventh Circuit granted her request for injunctive relief that required the school district to allow her to use bathrooms consistent with her gender identity.
The Supreme Court’s Recent Approach to Transgender Youth Rights
After the courts granted Jane an injunction, the Supreme Court issued two decisions that addressed the limits of constitutional rights for transgender youth.
In 2025, the Supreme Court decided United States v. Skrmetti, in which it upheld the constitutionality of a Tennessee law that prohibited transgender minors from receiving gender affirming care, including hormones and puberty blockers. The Court held that the Tennessee law classified based on age and medical treatment, rather than sex (or gender identity), and therefore did not trigger any heightened scrutiny under the Equal Protection Clause. As such, the law only needed to survive minimum rational basis scrutiny, a standard that was easily satisfied.
More recently, the Supreme Court in West Virginia v. B.P.J. ex rel. Jackson upheld the constitutionality of West Virginia law prohibiting transgender girls from playing on girls’ sports teams in schools. The Court held that this was a sex-based classification and therefore subject to intermediate scrutiny. Because West Virginia had advanced sufficient evidence to demonstrate that heightened level of scrutiny (safety and competitive fairness), the law met the constitutional standard.
Why the Court Allowed the Equal Protection Claim to Proceed
In Mukwonago, the court recognized that it was “beyond question” that the school district’s policy classified based on sex and thus triggered intermediate scrutiny. This meant the policy at issue was different from the gender affirming care ban that the court in Skrmetti held classified based on age and medical diagnosis, rather than sex. As the court noted: the policy “does prohibit conduct for one biological sex that it permits for the other—biological girls can use the girls’ bathroom, but biological boys (like plaintiff) cannot, whatever their individual circumstances. That is the heart of the dispute.” This put the case more on footing with the law at issue on B.P.J., the Mukwonago court reasoned, in which the Court held that the prohibition on trans girls playing on girls’ sports teams was a sex-based classification. Because the Mukwonago court was only asked to consider the merits of Jane Doe’s Equal Protection Claim on the facts pled in the complaint, and the case has not yet proceeded to consider evidence of the school district’s justification for its policy, Jane Doe had sufficiently alleged that the policy discriminated against her based on sex. As the case proceeds, the burden will shift to the school district to demonstrate that the policy is substantially related to an important governmental interest and thus satisfies intermediate scrutiny.
The Legal Landscape of Transgender Bathroom Use
Mukwonago is one of the first, if not the first, decision applying Skrmetti and B.P.J. to the issue of students’ access to bathrooms consistent with their gender identity. As other courts assess these claims, they should look to the Mukwonago’s reasoning to ensure the rights of trans youth not even further eliminated. See, e.g., Doe v. Cabarrus Cnty. Bd. Of Educ. No. 1:26-cv-00752 (M.D.N.C. 2026) (considering challenge to school policy permitting students to use restrooms and locker rooms based on gender identity). Mukwonago is unequivocal that banning students from using bathrooms consistent with their gender identity is a sex-based classification that can violate the Constitution. As students and parents consider how to fight the right for trans youth to access bathrooms most consistent with their lived experience, they should know that past Supreme Court cases are not a barrier to the fight and can serve as a roadmap for success.
