BREAKING: UW-Madison Faces Title IX Complaint Over Transgender Bathroom Policy

The complaint from Defending Education, a grassroots activist network, targets university policy UW-6009

Women’s bathroom in Memorial Library

A federal civil rights complaint was filed with the Department of Education on November 12 against the University of Wisconsin-Madison over alleged violations of Title IX.

The complaint from Defending Education, a grassroots activist network, targets university policy UW-6009, which establishes the right of “students, staff, faculty, and visitors…to use the restroom or facility most safe and comfortable for them, without being harassed or questioned, regardless of gender expression or sex assigned at birth.”

Defending Education vice president Sarah Parshall Perry told Fox News, “The university’s policies are breathtaking in the vastness of their transgender preferencing, leaving biological females at the university without recourse, and in patent violation of Title IX—a law passed explicitly to secure educational equality for women, and for no other purpose.”

The concerns of biological women are not addressed within the official policy, but instead covered on a “Frequently Asked Questions” webpage regarding the policy. The page recommends that any female “uncomfortable sharing a multi-stall restroom with gender nonconforming individuals” instead seek out a gender-neutral restroom. Defending Education said the university instructs them to “abandon female spaces and flee to single-occupancy restrooms.” Gender-neutral restrooms were originally installed by the university to serve those same “gender nonconforming individuals.” The complaint cites the Fourteenth Amendment to provide a legal backing for its civil rights claim.

From a policy perspective, Defending Education likely seeks to take advantage of the momentum with the Department of Education under the second Trump administration after attempted changes to Title IX regulations by the Biden administration were struck down nationwide by a Kentucky federal court in Tennessee v. Cardona this past January. Within days of the inauguration, the Department of Education ordered all educational institutions receiving federal funding to revert to the 2020 Title IX regulations in place during the first administration. In the complaint, Defending Education also cites the first-day executive order establishing the official policy of the federal government “to recognize two sexes, male and female…’Sex’ is not a synonym for and does not include the concept of ‘gender identity.’”

“UW-Madison just became aware of this letter but has not received any contact from OCR regarding the referenced complaint,” university spokesman John Lucas told The Madison Federalist. “If we receive notice of any OCR investigation, we will cooperate.”

The policy in question dates to August 2019, well before the Biden administration announced the intended changes. However, the policy’s roots stretch back to August 2017, when then-Provost Sarah Mangelsdorf, now the president of the University of Rochester, and then-Vice Chancellor for Finance and Administration Laurent Heller, now in a similar role at Johns Hopkins University, created an eight-individual Gender Inclusive Restrooms Facilities (or GIRF) Task Force.

The Task Force was charged with helping create coherent university policy regarding the restroom needs of sexual minorities on campus, after the university’s Facilities Planning & Management received fifteen requests for such facilities during the 2016-17 academic year. The Phase I final report by the GIRF Task Force and a 2018 Diversity Forum presentation only concerned the creation of gender-inclusive restrooms.

However, amid continuing complaints among members of the student body, the absence of a requisite number of gender-neutral restrooms, and budgetary concerns, in the final draft of the policy, the university simply allowed for a student to use whichever restroom they like. In January 2019, over halfway through the GIRF Task Force’s lifespan, the Badger Herald ran an article about the “lack of visibility surrounding gender-neutral restrooms on campus.” By this time, gender-neutral restrooms were present in 60 out of 400 university buildings, but negative experiences continued to be reported by students. Further complicating matters, in planning for the installation of gender-neutral restrooms, “UW administration approved funding for the committee to hire outside agencies to conduct the space and occupancy studies for 50 of the 400 buildings on campus, but Briggs said funding ran out after just 32.”

A Campus Planning Committee Meeting presentation from March 2020, which contains an “update” regarding the Gender Inclusive Restroom Policy, confirms the differing goals of the two phases. Phase I dealt with the maintenance and construction of gender-neutral restrooms, while Phase II dealt with “Restroom Policy.” This policy contained the inclusive restroom use statement which made its way into UW-6009: “Students, faculty, staff, visitors and guests may use the restroom, locker room or changing facility in which they feel safest and most comfortable.”

The Gender Inclusive Restrooms Facilities Task Force originally sought to provide an adequate number of separated campus facilities for primarily transgender-identifying people. The growing realization amid campus administration that this was impossible to sufficiently satisfy, as well as a lack of funding for the expansive planned renovation, led to a functionally ambiguous policy, that both touted the achievements of the university in providing these gender-neutral facilities, and said that “restricting individuals to using only restrooms that are not consistent with their gender identity or segregating them from others by requiring them to use gender-neutral or other specific restrooms, singles those users out and may make them fear for their physical safety.”

In April, Defending Education filed a separate civil rights complaint aimed at a race-based scholarship issued by the university in the wake of Students for Fair Admission v. Harvard.