The rollback of protections for transgender students and fresh legal developments over whether teachers can refuse to use students’ chosen names and pronouns on religious grounds have thrust the fight over transgender rights in schools into a new era.
The new Trump administration has removed Biden-era guidance supporting transgender students and the U.S. Supreme Court will take up a case about whether parents may raise religious objections to LGBTQ+ lessons in public schools.
And now, a related issue that has been percolating for years—whether public school teachers may refuse to use transgender students’ names and pronouns that don’t align with their sex at birth—is getting fresh judicial scrutiny.
A federal appeals court this week heard arguments in the case of an Indiana music teacher who refused to use transgender students’ chosen identifiers because he contends doing so conflicts with his Christian faith. Courts have previously ruled for the school district, but the Supreme Court ordered a reconsideration in light of one of its own recent decisions that raised the bar for when an employer may refuse a religious accommodation for a worker.
Meanwhile, the issue of teachers’ objections to transgender students’ names and pronouns also was aired in a recent decision by a federal district judge in Kentucky that struck down the Biden administration’s Title IX regulation that protected transgender students. The judge interpreted the regulation as compelling teachers to use students’ chosen identifiers, and ruled that any such requirement would violate the free speech rights of teachers.
Even though the Biden administration’s Title IX rule is now blocked nationwide and unlikely to come back to life under the Trump administration, the judge’s discussion of the issue may bolster the movement supporting teachers who seek for religious reasons to avoid transgender students’ names and pronouns that don’t align with their sex at birth.
An attempted accommodation involving last names only
The Indiana case involves John M. Kluge, who taught high school music and orchestra in the 10,000-student Brownsburg school district, near Indianapolis.
In the 2017-18 school year, district officials learned they would have several transgender students enrolling as freshmen at Brownsburg High School. In response to a district plan designed to support those students, Kluge and three other teachers at Brownsburg High approached administrators with their view that their Christian beliefs would not permit them to address transgender students with names or pronouns that were inconsistent with those the students were assigned at birth.
Kluge said at one point that being required to use the transgender students’ identifiers would make him help lead them down “a path that’s going to lead to destruction, to hell, [and] I can’t as a Christian be encouraging students to hell.”
Once the school’s database was updated with the transgender students’ chosen names and pronouns (done with the support of their parents and health professionals), the three other teachers agreed to follow the district’s support policy. But Kluge did not, and he and the district eventually tried an accommodation in which he would address all students by their last names. But there were soon problems, as two transgender students in Kluge’s classes felt targeted by the accommodation, and the teacher sometimes slipped and used first names for cisgender students but not their transgender classmates.
The district told Kluge the accommodation wasn’t working and he would have to abide by the policy. They also questioned why he had used transgender students’ chosen names at an awards assembly but insisted he could not respect transgender students’ choices in the classroom.
Kluge resigned from his job and later sued the district under Title VII of the Civil Rights Act of 1964. He claimed religious discrimination and that the district failed to follow the law’s requirement to accommodate religious employees.
Both a federal district court and the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld the school district, with the appeals court ruling in 2023 that Kluge’s accommodation request presented a more than “de minimis,” or minimal,” hardship on the employer, under the prevailing Title VII test at the time.
Later that year, however, the Supreme Court changed the test, ruling in Groff v. DeJoy that a worker’s religious accommodation must create a “substantial” hardship for an employer to be rejected. The high court threw out the lower court rulings in the teacher’s case and ordered the courts to reconsider his case in light of the new test.
Court weighs teacher’s refusal to use transgender students’ names under Title VII and Title IX
The federal district judge applied the new standard from Groff, but again ruled for the school district, holding that it demonstrated undue hardship because the last-name-only accommodation disrupted the learning environment and exposed the district to an unreasonable risk of liability under Title IX.
That decision came before the same panel of three 7th Circuit judges on Jan. 22 in Kluge v. Brownsburg Community School Corp.
“Groff substantially changed what we’re dealing with here,” David A. Cortman, a lawyer from the Alliance Defending Freedom representing Kluge, told the panel in a livestreamed argument. “The school can’t define its mission in particular way to violate Mr. Kluge’s rights.”
Senior U.S. Circuit Judge Ilana D. Rovner, who wrote the 2023 decision for a divided panel that favored the school district, seemed to continue to lean toward the district.
“Doesn’t the school district have a duty to each and every student to provide a supportive learning environment, even if only two [transgender] students say they were injured by the accommodation?” said Rovner, an appointee of President Ronald Reagan. “The employer in this case tried the accommodation. And it did not work in the sense that it caused emotional harm to transgender students.”
Judge Michael B. Brennan, a Trump appointee who dissented in the 2023 decision, questioned the school district’s lawyer about the district’s fear of violating Title IX if it continued Kluge’s accommodation.
“The cases … that are cited that potentially put the school district at risk of Title IX liability, those are ones where [a] transgender student was treated differently than other students,” Brennan said. “Isn’t it the case here that all the students were being treated the same by Mr. Kluge?”
Brent R. Borg, the district’s lawyer, noted that the 7th Circuit has previously rejected a school district’s response to a transgender male student’s lawsuit seeking access to a boys’ restroom that aligned. In a 2017 decision, the 7th Circuit ruled that providing a gender-neutral restroom available to all students was not legally sufficient.
“Here, if Brownsburg allows the last name only accommodation to continue, in light of all the harms that have been demonstrated by this record, [and] all the concerns that were raised by the teachers, the high school community,” Borg said, it would be condoning Kluge’s underlying reason that he was refusing to use chosen names and pronouns “on the basis of a student’s transgender status.”
The third judge, Amy J. St. Eve, an appointee of President George W. Bush, had joined the 2023 opinion in favor of the district and asked probing questions of both lawyers in the new argument.
The 7th Circuit panel’s eventual decision could face review in the Supreme Court and a potential nationwide ruling on teachers’ and transgender students’ names and pronouns.
Federal judge’s recent ruling striking down Biden’s Title IX rule addresses teachers’ use of pronouns
A slightly different perspective on Title IX and teacher’s identifiers for transgender students emerged in a recent federal district court ruling striking down the Biden administration’s regulation interpreting the 1972 law, which bars sex discrimination in federally funded schools, to protect LGBTQ+ students.
U.S. District Judge Danny C. Reeves, in a Jan. 9 opinion in Tennessee v. Cardona, said the Biden rule “expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head.”
After numerous other federal courts had temporarily blocked the regulation in roughly half the country, Reeves, a George W. Bush appointee, issued the first decision striking it down on the merits. Because it was on the merits, the decision invalidated the regulation nationwide, and with the Trump administration now in place, an appeal seems unlikely.
One facet of Reeves’s opinion, in contrast to other challenges to the regulation that focused on federal administrative law, is that he suggested the regulation also violated the First Amendment because, as he interpreted it, the rule would require teachers to use transgender students’ names and pronouns that don’t align with their sex at birth.
Reeves acknowledged that the Biden administration took issue with the interpretation that its rule necessarily would require teachers to use such identifiers. But Reeves, in an earlier preliminary opinion involving the Title IX regulation, said the Biden administration had sent the message in other informal guidance and in responses to public comments about the proposed regulation that “misgendering” could constitute impermissible sexual harassment that violated Title IX.
Reeves said in his final opinion that the challengers of the regulation, particularly a Christian Educators group that joined the case before him, “reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the final rule. Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner.”
The judge glossed over some finer points of whether K-12 public school teachers have full First Amendment protection for their on-the-job speech (Supreme Court precedents suggest they do not) or whether they are on par in terms of speech rights with college professors. But advocates arguing for religious excusals for teachers who don’t want to use transgender students’ chosen names and pronouns were pleased.
“Our members and other educators are free from any attempt by the federal government to use Title IX to force them to say things about sex and gender identity that aren’t true and that violate their deeply held convictions,” David Schmus, the executive director of the Yorba Linda, Calif.-based Christian Educators group, said in a statement this month.
On the other side of the issue, Chase B. Strangio, a transgender lawyer who leads the American Civil Liberties Union’s LGBTQ and HIV Project, said that actions this week as the Trump administration took office, including executive orders removing some Biden-era guidance along with other recent legal developments, were discouraging.
“There are going to be significant changes across government based on the instruction from the president to discriminate against transgender people,” Strangio said. “We are monitoring those across the government and preparing to take whatever action is needed to ensure that transgender people are able to experience the full protection of the law.”
