When Decisions Matter.

The Legal Intelligencer Published Attorney Harris’ Title IX Article

Religious Freedom and Parental Rights: The Upcoming Title IX Battleground for Transgender and Gender Nonconforming Students

Reprinted with permission from the October 7, 2022, edition of the THE LEGAL INTELLIGENCER© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

Title IX of the educational amendments of 1972 (Title IX) guarantees that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

With the proposed changes to Title IX regulations announced by the United States Department of Education, parents and employees are questioning public schools nationwide on their policies and practices for responding to and accommodating transgender and gender nonconforming students. In particular, many employees are asserting their right to refuse to call a student by their preferred pronoun or name and/or tell a parent whether their child has changed a preferred pronoun or name.

In early 2016, the Department of Justice and the Department of Education issued joint guidance formally acknowledging their view that Title IX prohibits discrimination on the basis of gender identity and clarified that transgender students should therefore be treated consistent with their gender identity in school districts receiving federal funding. More recently, in June 2020, the Supreme Court of the United States held in Bostock v. Clayton County that sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) encompasses discrimination on the basis of sexual orientation and transgender status. Bostock v. Clayton County, 140 S. Ct. 1731, 2020 U.S. LEXIS 3252. In the months following the Bostock decision, federal courts recognized that Title VII jurisprudence informs Title IX decisions and began holding that Title IX protections also encompass discrimination on the basis of sexual orientation and transgender status.  See, e.g.Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616-17 (4th Cir. 2020). Of course, providing that Title IX encompasses discrimination on the basis of sexual orientation and transgender status opened up the question of where the line would be drawn between the rights of transgender and gender nonconforming students compared to the rights of employees and parents.

In May 2022, the United States District Court for the District of Kansas heard a case on a preliminary injunction involving a teacher who was suspended and disciplined for not using one student’s preferred name. Ricard v. USD 475 Geary Cty., No. 5:22-cv-04015-HLT-GEB, 2022 U.S. Dist. LEXIS 83742 (D. Kan. May 9, 2022). Through the course of the hearing, the issue was narrowed only to the school district’s “communications with parents policy” (Policy). In the Policy, the school district prohibited employees from revealing to parents that a student requested use of a preferred name or different set of pronouns at school unless the student requested the administration or a counselor to do so.

In examining the employee’s free exercise argument, the court first asked whether the Policy burdened the employee’s exercise of religion. The employee testified, and the court found persuasive, that her Christian beliefs prohibited dishonesty and lying. In furtherance of her testimony, the employee argued that it is a form of dishonesty to converse with a parent of a child using one name and set of pronouns when the child is using and being referred to at school by a different name and pronoun. The court then analyzed the Policy itself to determine if it was both neutral and generally applicable. In looking at the actual practice of the school district, the court found that the Policy allowed for multiple secular exceptions, such as when complying with a parent’s request for education records under the Family Educational Rights and Privacy Act (FERPA). Due to these secular exceptions, the court concluded that the rule was not generally applicable and thus looked to the school district to show that the Policy was justified by a compelling interest and narrowly tailored.

The court turned to the reason the school district stated when it implemented the Policy and the post hoc argument made at the hearing. Namely, at the time the Policy was implemented, the school district communicated to parents that their Policy was pursuant to FERPA; they argued post hoc that it was not their “place to ‘out’ a student to their parents.” The court found that neither of these reasons met the high burden required under the strict scrutiny standard. Having determined that the school district failed to meet its burden, the court concluded that the employee demonstrated a substantial likelihood of success on her free exercise claim concerning the Policy and went on to grant the limited preliminary injunction.

More recently, in August 2022, the United States District Court for the District of Maryland, Southern Division, heard a case on a Motion to Dismiss concerning a group of parents alleging a violation of their substantive due process rights under the Due Process Clause of Fourteenth Amendment. They argued their school district’s guidelines instructed the school staff to withhold information from parents about their student’s gender identity as expressed at school. John & Jane Parents 1 v. Montgomery Cty. Bd. of Educ., No. 8:20-3552-PWG, 2022 U.S. Dist. LEXIS 149021 (D. Md. Aug. 18, 2022).

In determining the proper scrutiny, the court conducted an extensive analysis of the Supreme Court’s Meyer-Pierce progeny cases which first outlined a parent’s fundamental liberty interest and right to make decisions regarding the care, custody, and control of their children, including the right to direct the upbringing and education of children under their control. The court noted the Supreme Court’s authority on the subject as: “Except when the parents’ interest includes a religious element … the [Supreme Court] has declared with equal consistency that reasonable regulation by the state is permissible even if it conflicts with the interest. That is the language of rational basis scrutiny.” John & Jane Parents 1 citing Herndon by Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 89 F.3d 174, at 178 (4th Cir. 1996).

After concluding that the school district’s guidelines need only bear some rational relationship to a legitimate state interest to pass constitutional muster, the court held that the school district’s guidelines clearly met that standard. Specifically, the court found that the school district had a legitimate interest in providing a safe and supportive environment for all students, including those who are transgender and gender nonconforming, and that the guidelines were rationally related to achieving that result.

The court went on further to conclude that even if the higher strict scrutiny standard was applied, the school district met that burden when it identified their compelling interest in: “1) protecting their students’ safety and ensuring a safe, welcoming school environment where students … feel accepted and valued; 2) not discriminating against transgender and gender nonconforming students; and 3) protecting student privacy.” The court noted that the Supreme Court has found it “evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling.” New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348. Lastly, the court agreed with the school district that their guidelines were narrowly tailored in furtherance of their interests as they “…do not aim to exclude parents, but rather anticipate and encourage family involvement in establishing a gender support plan. Even where family support is lacking, the inclusion of family is identified as an eventual goal. The [g]uidelines, on their face, are noncoercive, and serve primarily as a means of creating a support system and providing counseling to ensure that transgender children feel safe and welcome at school.” John & Jane Parents 1, at *38.

The two new cases above continue to place school boards and administrators in a precarious spot between parents and employees while attempting to effectuate their charge: to educate students in a safe and welcoming environment. Of note, the John & Jane Parents 1 court specifically addressed the Ricard decision by concluding that the guidelines outlined in the John & Jane Parents 1 case closely resembled the “appropriately tailored” policy imagined by the Ricard court and thus would have succeeded scrutiny had they been at issue in that case.

While public schools will have a continued struggle with balancing the rights of transgender and gender nonconforming students with those of employees and parents, the John & Jane Parents 1 court provided some guidance on the matter: “…importantly, [the guidelines] apply to each student on a case by case basis. By advising that school personnel keep a transgender or gender nonconforming student’s gender identity confidential unless and until that student consents to disclosure, they both protect the student’s privacy and create, as [the school district] puts it, ‘a zone of protection … in the hopefully rare circumstance when disclosure of [the student’s] gender expression while at school could lead to serious conflict within the family, and even harm.’ … A transgender child could hardly feel safe in an environment where expressing their gender identity resulted in the automatic disclosure to their parents, regardless of their own wishes or the consequences of the disclosure.”

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