July 18, 2024
Hot Topics: Action Plans for Current Issues & Those to Anticipate, Part 3:

Gender Identity

Gender Identity in Education WASDA Conference

In September of 2023, at the WASDA Fall Conference, Kirk Strang spoke about hot topics in Wisconsin school districts. We’re recapping Kirk’s presentation here in this series in an effort to share this information with more superintendents, faculty and school administrators (be sure to click on the links below if you missed any of the previous installments).

This five-part series dives into each of the following hot topics:

In Part 3, our focus is on gender identity, specifically:

  • Title IX Protections
  • Preferred Names & Pronouns
  • Preferred Names: Questions to Consider
  • Preferred Names & Pronouns: Best Practices, Tidbits, Socratic Method, & Other Stuff

Note: this material on gender identity was originally presented by Kirk at the 2023 CESA 10 Superintendent meeting, and was published in our article titled, CESA 10 Superintendent Meeting Legal Update, Part 5: Gender Identity. We’re republishing the information here, as it’s an important topic in this series …

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.”
    1. 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).
    2. The Court’s opinion considered the meaning of “sex” solely as used in Title VII, which protects employees from discrimination.
    3. 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.
    1. Guidance issued by the U.S. Department of Education, Office for Civil Rights (OCR), has fluctuated over the last decade. 
      1. In May of 2016, 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.” 
      2. However, OCR’s more recent guidance 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. 
    2. Executive Order 13988: On January 20, 2021, President Biden’s Executive Order overruled OCR’s guidance. The order established that Bostock did affect Title IX, meaning that Title IX protects students from discrimination based on gender identity and sexual orientation.

PREFERRED NAMES & PRONOUNS

  1. Wisconsin Statute § 786.36(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.  
    1. Under the statute, a minor may change his/her legal name or have his/her name established by order of the court if no sufficient cause is shown to the contrary.    

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

      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.)           

      Find more info on students & names here:           
      What’s in a Name, WASB Legal Comment (February 1992)    

  2. 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.”           

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

      34 C.F.R. § 99.7(a)(2)(ii).           

  3. Court Decisions.           

    1. Courts outside of the Seventh Circuit have addressed the rights of students to change the gender markers on their pupil records.            

      In 2020, the Fourth Circuit Court of Appeals held that a school board’s “refusal to amend [a biologically female] student's records to reflect his male gender unlawfully discriminated against him on the basis of sex in violation of Title IX.”           

      Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).           

    2. In 2020, a teacher (Kluge) 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 (recorded in the student database). Kluge alleged that his religious beliefs prevented him from following the policy.

      In this case, the school had the burden to demonstrate it could not reasonably accommodate Kluge’s religious practice “without undue hardship on the conduct of the [school’s] business.”           

      The school asserted that Kluge’s accommodation negatively impacted the learning environment for transgender students and others. In addition, Kluge’s accommodation made the school vulnerable to potential Title IX claims by transgender students.           

      HOLDING …           
      On appeal, the Seventh Circuit found in favor of the school. The Court held that the undisputed evidence demonstrated that Kluge's accommodation harmed students and disrupted the learning environment. Notably, “Title VII does not require the school to adopt an accommodation that, although facially neutral, does not work that way in practice.”

PREFERRED NAMES: QUESTIONS TO CONSIDER

  • 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 discrimination based on gender. Our courts and current OCR authorities assert 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 & PRONOUNS: BEST PRACTICES, TIDBITS, SOCRATIC METHOD, AND OTHER STUFF

  • Generally speaking, teachers must follow school policy, even if the policy can implicate a teacher’s personal or religious beliefs.
  • 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?
  • Is there an established practice in your district 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)?
  • 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 would taking this approach mean?
  • Claims based on “climate.”
    • Some discrimination claims are 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.

This brings us to the end of our segment on gender identity. Next up in this series is Part 4, public comment, which tackles two major topics: rules for public comment period, and virtual meetings to avoid disruption.

If you’re interested in reading the remainder of the articles in our CESA 10 Superintendent Meeting Legal Update series, you can find them here:

© 2022, Strang Law LLC