In the last year, several school districts across Texas, and across the nation, have adopted policies addressing when a student identifies a preferred pronoun that is different from the student’s biological sex assigned at birth. According to the U.S. Department of Education, schools should use welcoming and inclusive language when adopting policies that respect all students’ gender identities.[1] That includes using the “pronouns that reflect a student’s gender identity.” However, not all students, or perhaps their parents or teachers, feel comfortable using pronouns that do not conform to a student’s biological sex assigned at birth. While there are no reported Texas cases on point, cases in Ohio and Indiana are instructive.
The Olentangy Local School District, Ohio’s fourth largest school district, adopted a Code of Conduct prohibiting “speech that involves discriminatory language, including the intentional misgendering of transgender students—i.e., failing to address a student by their preferred pronouns.” An anonymous group of students and parents objected, arguing the policy requires the students to affirm the idea that gender is fluid, contrary to their deeply-held religious beliefs. With the assistance of Parents Defending Education, this group sued the school district, asking the court to declare the policy an unconstitutional violation of the First and Fourteenth Amendments.
The court concluded that the hostile environment created by discriminatory speech is enough to cause a substantial disruption on its own, that discriminatory language has been shown to have significant effects on schoolchildren, and that students are a captive audience unable to escape such comments.[2] The court specifically noted that misgendering a transgender student is, by nature, targeted to a specific student, evidencing disrespect for the individual. In contrast, the court noted that the plaintiff students are not compelled to use any pronoun and the school allows them to seek an accommodation from the school district. Given the balance of rights, the Ohio court upheld the district’s policy.
In neighboring Indiana, the Brownsburg Community School Corporation adopted a policy requiring teachers to use the names and pronouns recorded in the school’s official student database. Students wishing to change their names and/or pronouns in the database could do so only if they first presented two letters, one from a parent and one from a healthcare professional, regarding the need for the changes. Teacher Kluge sought and initially received an accommodation for his sincerely held religious belief that allowed him, among other things, to address transgender students by their last name. However, after concluding the accommodation was “detrimental to kids,” the school rescinded the accommodation. Kluge sued, claiming that the school failed to provide a reasonable accommodation for his sincerely held religious beliefs and that the removal of the accommodation was done in retaliation for his seeking an accommodation, in violation of Title VII. The trial court granted summary judgment in favor of the school.
On appeal, a panel of the Seventh Circuit held that allowing the teacher to use last names as an accommodation to the pronoun policy would create an undue burden for the school because it would be detrimental to the health and educational opportunities of students, particularly transgender students, and “the school has a legitimate interest in the mental health of its students.”[1] As the Court concluded: “Allowing Kluge to continue in the practice thus placed an undue hardship on Brownsburg’s mission to educate all of its students, and its desire to treat all students with respect and affirmation for their identity in the service of that mission.” The Court also emphasized how students constitute a captive audience due to the compulsory nature of education.
Following the U.S. Supreme Court’s decision in a separate Title VII case, Groff v. DeJoy, which reinterpreted the undue hardship standard in religious accommodation cases to require the hardship to be substantial in the overall context of the school’s business rather than merely de minimis, the appeals court vacated the Kluge decision, and the case was remanded for the trial court to apply the correct standard.[2] Currently, cross-motions for summary judgment are again pending before the trial court.
Both cases are instructive: courts err on the side of protecting students. Therefore, when adopting preferred pronoun policies, schools should be prepared to clearly articulate the harm they are attempting to avoid and to provide reasonable accommodations when requested.
This summary is not, and is not intended to be, an exhaustive exploration of issues surrounding transgender students or legal advice. Please contact the attorneys at Brackett & Ellis if you need help navigating policies regarding preferred pronouns. We can be reached at (817) 338 – 1700.
[1] U.S Department of Education Supporting Transgender Youth in School (PDF).
[2] Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., No. 2:23-CV-01595, 2023 WL 4848509 (S.D. Ohio July 28, 2023).
[3] Kluge v. Brownsburg Cmty. Sch. Corp., 64 F.4th 861 (7th Cir. 2023), vacated on denial of reh’g, No. 21-2475, 2023 WL 4842324 (7th Cir. July 28, 2023).
[4] Kluge v. Brownsburg Cmty. Sch. Corp., No. 21-2475, 2023 WL 4842324, at *1 (7th Cir. July 28, 2023).
