Ella Frei is a junior at New Richmond High School in Wisconsin. When a biological male was allowed to use the girls' restroom at her school, she objected. The school's solution was to tell her — the biological girl — to use one of the four single-stall bathrooms instead. Those bathrooms are located on the opposite side of the school from her classrooms. She misses class time and parts of her lunch hour walking to them. One is in the teachers' lounge and is often occupied by staff.
So the girl who asked for privacy is the one who got punished for it.
Frei and her family filed a lawsuit. The School District of New Richmond moved to dismiss on June 12. The Supreme Court's B.P.J. ruling on June 30 — which upheld the right of schools to separate sports participation by biological sex — seemed like it would bolster the family's case. The highest court in the country had just affirmed that biological sex distinctions in schools are constitutionally permissible.
Then the ACLU showed up.
On June 18, even before the Supreme Court issued B.P.J., the ACLU requested permission to file a brief in Frei's case. By June 29, both parties had requested extended briefing to address the coming Supreme Court decision. Now the ACLU — along with GSAFE, the Gay Straight Alliance for Safe Schools — is arguing that the Supreme Court's ruling on trans athletes doesn't apply to bathroom access.
Their argument leans heavily on Bostock, the 2020 Title VII workplace discrimination case, to claim that Title IX protections require schools to let biological males into girls' restrooms. The ACLU's position is essentially that the Supreme Court meant what it said about sports, but only about sports — and that a completely different legal framework governs which bathroom a teenage girl has to share.
"I am slowly coming out of a state of shock," Frei said about the ACLU's intervention.
The ACLU's legal theory requires you to believe that the Supreme Court's reasoning about biological sex in one school context has zero bearing on biological sex in another school context — in the same building, under the same federal statute, involving the same students. That's not legal analysis. That's compartmentalization as litigation strategy.
Back in February, the New Richmond school district voted down a proposal that would have separated restrooms and locker rooms by biological sex. The district chose its policy. Frei's family chose to challenge it. And now the ACLU has chosen to spend its resources making sure a sixteen-year-old girl keeps walking to the other side of her school.
The organization that built its reputation on defending individual rights against institutional power is now the institution's lawyer. The girl missing lunch to find a bathroom she's comfortable using is on her own.
Title IX was written to make sure girls got a fair shot in education. Somehow it's become the statute used to explain why a girl should walk ten minutes to a bathroom so someone else's feelings aren't hurt.
That's not a civil liberty. That's an accommodation — and they're demanding it from the wrong person.
