Mother of alleged sexual assault victim pleads for notice, opt-out before girls wrestle males

The mother of a female wrestler who alleges she was sexually assaulted during a match with a male wrestler, whose sex was hidden from them, is testing the limits of recent Supreme Court precedents on parental rights in public schools, arguing the school has an affirmative duty to stop the girl from unwittingly wrestling another male.

On behalf of her daughter Kallie Keeler, Stephanie Brown is seeking an emergency motion for an injunction pending appeal to force the Washington Interscholastic Activities Association, Office of the Superintendent of Public Instruction and Puyallup School District to either "withdraw her daughter from male matchups or tell her about upcoming ones."

She asked for relief by Sept. 25, roughly two months before the high school wrestling season's first practices in The Evergreen State and Keeler is forced to withdraw to avoid unwittingly wrestling the opposite sex.

U.S. District Judge David Estudillo, nominated by President Biden, had ruled Brown had no right to "obtain private, sensitive information" – sex – about students wrestling against her daughter or "direct the administration of extracurricular student sports activities." He also expressed doubt that girls inherently face a "known or obvious risk" from wrestling males.

It was good news for the school district, under investigation by the Trump administration since February for its alleged indifference to Keeler's reported assault, caught on video when she yelled to her mother that the opponent had digitally penetrated her. Estudillo also questioned Brown's claims about the school district's response to Keeler's reported assault.

The judge falsely claimed Brown was asking for private information about other wrestlers, Brown's motion Thursday says. She's asking for "materially indistinct" relief as SCOTUS granted the religious parents who successfully sued Maryland's Montgomery County Public Schools for refusing notice and opt-out before exposing their young children to LGBTQ "storybooks."

The high court's Mirabelli ruling against California's so-called gender secrecy policies this spring affirmed that last year's Mahmoud precedent on notice and opt-out was not limited to "curricular decisions," requiring Puyallup to respect Brown's wishes and ensure her daughter doesn't wrestle males before she shows up to the match, the motion says.

The Title IX coordinator confirmed Keeler – identified in the litigation by her initials K.M.K. – "may sit out these matches" with no "adverse consequences" and yet won't tell her beforehand or withdraw her itself, despite having a "workable" system to do so, Brown argues.

Because schools "hold wrestlers out for illness, injury, grades, attendance, and discipline" and WIAA exempts for "injury, illness, religious observance or unforeseen events," the district already has the "machinery" to handle withdrawn consent and WIAA recognizes "conviction alone" as grounds for backing out. 

"If notice is the problem, the District can withdraw K.M.K. and disclose nothing. If withdrawal is the problem, it can tell Brown and let her decide. What it cannot do is refuse both and call that narrow tailoring," the filing says. "Brown’s parental right deserves equal respect."

“A 15-year-old girl was sexually assaulted because of political cowardice" by state officials who "insist on pushing gender ideology at all costs," said Alliance Defending Freedom senior counsel Hal Frampton, representing Brown and Keeler in court. Their story "shows the grave harms caused by lying about biology."

Keeler's principal and the school's athletic coordinator were charged in July for taking 55 days to report Keeler's Dec. 6 incident to law enforcement, when the mandatory reporting law's window is 48 hours.

Tried to lose match twice to stop sexual assault

Judge Estudillo's Aug. 31 rejection of their emergency motion pending appeal discounted the relevance of Mirabelli, which required "parents’ notice of their own child’s gender dysphoria at school" but did not grant a "right to notice about other children," and Mahmoud, which did not give parents "the right to micromanage the public school curriculum."

He emphasized the district approved Keeler's "expedited" transfer to Puyallup High School from Rogers High School, where she perceives "hostility" from her coaches and staff for not protecting her, undermining her claim to face irreparable harm.

In denying their request for a preliminary injunction Aug. 26, Estudillo said the plaintiffs haven't even filed "a Title IX complaint related to any ongoing harassment or hostile environment" and the district has not received "a direct report that K.M.K. has been subjected to bullying or harassment."

He distinguished Title IX's prohibition on discrimination on the "basis of sex" from a transgender participation policy that allows coed participation on sex-segregated teams "on grounds unrelated to sex," and determined "Title IX and its accompanying regulations do not provide clear notice that transgender participation in girls’ sports is prohibited."

Estudillo is not the first judge to conflate "male" and "transgender" in litigation against males in girls' sports, or use the language of gender ideology. The Supreme Court's conservative majority has at least twice used the lingo and pseudoscience of gender ideology, in upholding state bans on so-called gender-affirming care for minors and males in girls' sports.

The emergency motion Thursday goes into graphic detail about what the male opponent allegedly did to Keeler.

"Midway through the match, the male reached between her legs and pushed his fingers through her clothes, penetrating her vagina for several seconds. Video shows her reaction,'" the motion says. "She tried to push the male off but could not. She then tried to lose. A minute later, the male groped her again, and she let herself be pinned to escape."

The district's investigator concluded the male "likely touched" her vagina "with force in the first instance" that caused her "discomfort," yet Keeler's principal dismissed what he acknowledged as Keeler's penetration by a male as ordinary wrestling, the motion says. (Defenders of the male wrestler make the same claim.)

The district appears to be playing a shell game with the girl and her mother, letting her opt-out of male matches without penalty while refusing to "schedule around such a match, tell Brown one is coming, or withdraw K.M.K. on its own," while telling Brown she "may keep her daughter from wrestling males while refusing her a way to do it."

It goes so far as warning parents that wrestling may cause concussion and cardiac arrest and requiring their permission for students to face such risks, but the motion argues such permission "does not require parents to accept that 'girls’ wrestling' requires wrestling a male."

Beyond the Mahmoud and Mirabelli precedents requiring advance notice and opt-out so that Brown can direct her daughter's upbringing, "Title IX unambiguously forbids treating females worse than males," the very system Washington set up, the plaintiffs claim.

Because of the "inherent physical advantages" of young males over females in sports, Washington's policy "means boys can make – and dominate – girls’ teams, like wrestling," while "girls have little chance to make a boys’ team and no inherent advantage if they do."

The motion repeatedly quotes the SCOTUS opinion upholding state bans on males in girls' sports, which says authorizing a male on a girls' team "necessarily displaces or disadvantages a female athlete," poses "particularly severe" safety risks in "contact sports" and has a deterrent effect on girls choosing to play even if only "a few males" played on their team.

Keeler lost everything she worked for because of the Washington policy, the motion says. "Last season, she was first in her weight class" on the team, but chose to lose the match, the third-place prize and "qualifying status" to end the sexual assault, also withdrawing from the team that season because officials didn't support her.