Gender Identity Issues

Welcome to the third installment of our Challenges for the 2022-2023 School Year series.

If you missed them, Part 1 focuses on unruly school board meetings, and Part 2 puts the magnifying glass on public access to school grounds.

In this installment of the series we’re examining  gender identity issues. Let’s start with a Supreme Court ruling that’s relevant to this topic …

Title IX Protections

1. In 2020, the U.S. Supreme Court ruled that “an employer who fires an individual merely for being gay or transgender violates Title VII.”

   The Court determined that:

   • [I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

   Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).

   The Court’s opinion considered the meaning of “sex” solely as used in Title VII, which protects employees from discrimination.

   At the time of the decision, it was unclear whether the decision also extended to the meaning of “sex” as used in Title IX, which protects students.

2. OCR guidance:
   • In May of 2016, the U.S. Department of Education, Office for Civil Rights (OCR), issued guidance that school districts must treat “a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
   • In February of 2017, however, the OCR withdrew its prior guidance. The Office asserted that the guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did [the Obama Administration] undergo any formal public process.”
   • On January 8, 2021, the OCR further deviated from its 2016 stance. A memorandum issued by the OCR asserted that the Court’s decision in Bostock did “not affect the meaning of ‘sex’ as that term is used in Title IX.” Instead, it was limited to Title VII. 
3. Executive Order 13988:

   However, on January 20, 2021, President Biden issued an executive order overruling the OCR’s guidance. The Order established that Bostock did affect Title IX. Executive Order 13988 stated:

   • Under Bostock’s reasoning, laws that prohibit sex discrimination—including Title IX … prohibit discrimination on the basis of gender or sexual orientation.

   Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

4. Department of Education’s proposed amendments:

   On June 23, 2022, the DOE released for public comment its proposed amendments to Title IX regulations. The proposed Title IX amendments, in part, would do the following:

   • Articulate the Department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and
   • Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.

Preferred Names

1. Wisconsin Statute § 786.36(1):
   1. [A]ny resident of this state, whether a minor or adult, upon petition to the circuit court of the county where he or she resides… may, if no sufficient cause is shown to the contrary, have his or her name changed or established by order of the court.

   If the person seeking a name-change is a minor under the age of 14 years, the petition may be made by:

   • the minor’s parents; 
   • The minor’s guardian or person having legal custody; or
   • The minor’s mother, if the minor is a nonmarital child and paternity is not established.

   Under this statute, a minor may change his or her legal name or have his/her name established by order of the court if no sufficient cause is shown to the contrary.

   A student’s school records may be changed to reflect this name change.

   1. The attorney general advises school administrators generally to honor requests from students who have obtained new names (whether pursuant to statute or common law) to make corresponding changes in school records (I am skeptical of the AG’s reference to common law in an area preempted by statute to this degree, but it may provide foundation or context for current law). 

   What’s in a Name, WASB Legal Comment (February 1992) https://wasb.org/wp-content/uploads/2017/04/C199202.pdf

2. Common Law:

   NOTE: The common law may not be as impactful as we discuss here, because the subject of student names is covered by other statutes (as an extremely general matter, the common law, if any, is generally considered in the absence of statutory authority)

   A minor also has a common-law right to change his or her name.

   The Supreme Court of Wisconsin has established that “Wisconsin does recognize the common law right to change one's name through consistent and continuous use, as long as the change is not effected for a fraudulent purpose.”

   The Court noted that the attorney general has long recognized this right. 

   1. [I]n the absence of statutory restriction, and where it is not done for a fraudulent purpose, one could lawfully change his name at will without proceedings of any sort, merely by adopting another name, and for all purposes the name thus assumed would constitute his legal name just as much as if he had borne it from birth.

   State v. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998)(Citing 20 Wis. Op. Att'yGen. 627, 628, 630 (1931)).

3. FERPA:
   1. The Family Education Rights and Privacy Act (FERPA) affords students the right to “[s]eek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights.”

      34 C.F.R. § 99.7(a)(2)(ii).

      Under FERPA, students may seek to amend the name and gender markers listed on their school records.

   The Wisconsin Association of School Boards’ Legal Comment recommended the following practice some time ago, in different circumstances:

   1. [R]efer to the child by the requested name on the pupil’s name tag, locker, announcements, birthdays and addressing [sic] the child verbally as requested if the student makes the common law name change request and the parent or guardian has been notified of the student’s request for a name change and does not object.

      Do not change the child’s official name or gender, on other pupil records until the name change or gender process is finalized through a court order or through the FERPA process.

      What’s in a Name, WASB Legal Comment (February 1992) https://wasb.org/wp-content/uploads/2017/04/C199202.pdf

   Student name changes that are part of a transitioning process would still require parental approval under this approach, if taken today, and many districts have required parental approval.

   The primary challenge presented is whether, and to what extent a student can determine what their name will be, when spoken and/or in writing.

   Title IX applies to students based on gender. Our courts and current OCR authorities have concluded that this includes transgender students. So far, most cases have concerned restrooms and now we are seeing the beginnings of some case activity concerning changing areas. Consequently, the rights that have been clearly identified are narrow, while the subject—identity—is extremely broad.

   Will Title IX be interpreted to mean that a transgender (or other) student has the right to determine what their name is as a function of their identity?

Preferred Names and Pronouns

• In 2020, a public-school teacher brought action against the Brownsburg Community School Corporation, alleging that the school forced him to resign after he failed to follow a school policy; the policy required him to address transgender students by their preferred names and pronouns. The teacher alleged that his religious beliefs prevented him from following the policy.

  The United States District Court for the Southern District of Indiana held, in part, the following:

  • The way in which the teacher addressed students was pursuant to the teacher's official duties as a public employee, and thus was not protected under the First Amendment;
  • The teacher's choice as to how to address students did not involve a matter of public concern, and thus was not protected by the First Amendment; and
  • The policy was neutral and generally applicable, and thus any burden on public school teacher's religious beliefs in requiring him to address transgender students by their preferred name and pronoun did not violate Free Exercise Clause.

Preferred Names and Pronouns: Best Practices, Tidbits, Socratic Method, & Other Stuff

1. Generally speaking, teachers must follow school policy, even if the policy can implicate a teacher’s personal or religious beliefs. However, almost all of these cases arise in the context of a teacher (or other public employees) refusing to service an individual because the individual’s beliefs or lifestyle are contrary to the employee’s religious beliefs. A different Constitutional challenge at least might be presented if the employee had to compromise their own religious beliefs in order to service students; while the plaintiffs in these cases don’t see it this way, providing services to those that aren’t behaving according to the service provider’s own religion does not, without more, usually violate anyone’s religious beliefs and—if it did—that employee (and the religious caste system implied by their descriptions of their faith) could not work for the government.
2. Would the same result be reached if the scenario were reversed, i.e., if the teacher called the student by the student’s chosen name and the Board policy required that teachers refrain from doing so unless the parents consented? What if the teacher said that they were doing it in solidarity with the student in support of the student’s rights under Title IX and they got fired anyway?
3. What is your school district doing (if anything) related to student names under Wis. Stat. § 786.36(1)? Has anyone seen a student follow the process on their own, without parental support (between the ages of 14 and 18)?
4. What about a process that allows all students to pick a “nickname or name that is preferred usage.” The process does not focus on transgender students and is gender neutral. All students have an equal right—at least under the policy—to suggest another name for themselves. What now?
5. Claims based on “climate.” Some discrimination claims are pressed based in part on a “climate” or “atmosphere” of discrimination. As a general matter, reasonable people can generally agree that discrimination against protected groups continues in our society to the present day. Nevertheless, reasonable people often disagree about the prevalence of discrimination and on the extent to which discrimination is institutional: under this view, the government is the product of an inequitable system and biased architects, and isn’t capable of fairness toward members of certain groups.

   To be sure, thoughtful individuals can have serious discussions about how discrimination affects individuals’ and groups’ social interactions. But the notion of a discriminatory “climate” fueling the claimed violation of the pupil discrimination law itself has almost no place in school districts’ actual defense of discrimination claims. School districts still can require proof of a violation according to accepted standards of law and can’t be made the apologist for all of society’s ills in the context of Wis. Stat. 118.13 complaints.

In 2022, the Wisconsin Supreme Court considered a case concerning parental involvement in the use of students’ preferred names and pronouns at school.

• The Madison Metropolitan School District had implemented a policy that included the following provisions:
  • A parent’s/guardian’s permission is not required for school staff to refer to students by their preferred names or pronouns; and
  • School staff will not disclose information related to a student’s gender identity to their parents/guardians without the student’s permission unless required by law.

    The Court denied the plaintiff’s request to grant temporary injunctive relief on the policy and remanded to the Dane County circuit court to adjudicate the substantive issues of the case.

    Doe 1 v. Madison Metropolitan School District, 2022 WI 65, 976 N.W.2d 584.

6. In 2021, the parents of a biologically-female student brought action against the Kettle Moraine School District, alleging that a district policy violated their parental rights.

   The policy in question directed school officials to refer to students using the name and pronouns chosen by the student, regardless of parental consent. The student in this case expressed a desire—to her parents and school officials—to adopt a male name and pronouns. The student’s parents informed the district of their intent to postpone their child’s possible gender transition and requested that school officials meanwhile refer to the student by her legal name and pronouns. The district rejected this request.

   The Waukesha County Circuit Court denied the Defendant’s Motion to Dismiss, determining that the Plaintiffs have standing to pursue their claim.

   T.F., et. al., v. Kettle Moraine School District, 2021CV650 (2022).

As you can see, there’s a lot to consider when it comes to gender identity. We hope the information in this article provides some clarity on this complex subject, and also sparks positive discussions within your district.

In the final installment of this series, we’ll dive into some of the challenges regarding curriculum & library materials.

Additional articles in the Challenges for the 2022-2023 School Year series:

• Part 1: Unruly Fans & Parents at School Board Meetings
• Part 2: Public Access to School Grounds
• Part 4: Controversies Over Books & Curriculum Decisions