The rollback of protections for transgender students and fresh legal developments over whether teachers can refuse to use students鈥� 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鈥攚hether public school teachers may refuse to use transgender students鈥� names and pronouns that don鈥檛 align with their sex at birth鈥攊s 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鈥� 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鈥� objections to transgender students鈥� names and pronouns also was aired in a recent decision by a federal district judge in Kentucky that struck down the Biden administration鈥檚 Title IX regulation that protected transgender students. The judge interpreted the regulation as compelling teachers to use students鈥� chosen identifiers, and ruled that any such requirement would violate the free speech rights of teachers.
Even though the Biden administration鈥檚 Title IX rule is now blocked nationwide and unlikely to come back to life under the Trump administration, the judge鈥檚 discussion of the issue may bolster the movement supporting teachers who seek for religious reasons to avoid transgender students鈥� names and pronouns that don鈥檛 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鈥� identifiers would make him help lead them down 鈥渁 path that鈥檚 going to lead to destruction, to hell, [and] I can鈥檛 as a Christian be encouraging students to hell.鈥�
Once the school鈥檚 database was updated with the transgender students鈥� chosen names and pronouns (done with the support of their parents and health professionals), the three other teachers agreed to follow the district鈥檚 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鈥檚 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鈥檛 working and he would have to abide by the policy. They also questioned why he had used transgender students鈥� chosen names at an awards assembly but insisted he could not respect transgender students鈥� 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鈥檚 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鈥檚 accommodation request presented a more than 鈥渄e minimis,鈥� or minimal,鈥� 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 that a worker鈥檚 religious accommodation must create a 鈥渟ubstantial鈥� hardship for an employer to be rejected. The high court threw out the lower court rulings in the teacher鈥檚 case and ordered the courts to reconsider his case in light of the new test.
Court weighs teacher鈥檚 refusal to use transgender students鈥� 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.
鈥淕roff substantially changed what we鈥檙e dealing with here,鈥� David A. Cortman, a lawyer from the Alliance Defending Freedom representing Kluge, told the panel in a livestreamed argument. 鈥淭he school can鈥檛 define its mission in particular way to violate Mr. Kluge鈥檚 rights.鈥�
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.
鈥淒oesn鈥檛 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?鈥� said Rovner, an appointee of President Ronald Reagan. 鈥淭he employer in this case tried the accommodation. And it did not work in the sense that it caused emotional harm to transgender students.鈥�
Judge Michael B. Brennan, a Trump appointee who dissented in the 2023 decision, questioned the school district鈥檚 lawyer about the district鈥檚 fear of violating Title IX if it continued Kluge鈥檚 accommodation.
鈥淭he cases 鈥� 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,鈥� Brennan said. 鈥淚sn鈥檛 it the case here that all the students were being treated the same by Mr. Kluge?鈥�
Brent R. Borg, the district鈥檚 lawyer, noted that the 7th Circuit has previously rejected a school district鈥檚 response to a transgender male student鈥檚 lawsuit seeking access to a boys鈥� restroom that aligned. In , the 7th Circuit ruled that providing a gender-neutral restroom available to all students was not legally sufficient.
鈥淗ere, 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,鈥� Borg said, it would be condoning Kluge鈥檚 underlying reason that he was refusing to use chosen names and pronouns 鈥渙n the basis of a student鈥檚 transgender status.鈥�
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鈥檚 eventual decision could face review in the Supreme Court and a potential nationwide ruling on teachers鈥� and transgender students鈥� names and pronouns.
Federal judge鈥檚 recent ruling striking down Biden鈥檚 Title IX rule addresses teachers鈥� use of pronouns
A slightly different perspective on Title IX and teacher鈥檚 identifiers for transgender students emerged in a recent federal district court ruling striking down the Biden administration鈥檚 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 in Tennessee v. Cardona, said the Biden rule 鈥渆xpanding the meaning of 鈥榦n the basis of sex鈥� to include 鈥榞ender identity鈥� turns Title IX on its head.鈥�
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鈥檚 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鈥� names and pronouns that don鈥檛 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 鈥渕isgendering鈥� 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, 鈥渞easonably fear that teachers鈥� (and others鈥�) 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.鈥�
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鈥檛 want to use transgender students鈥� chosen names and pronouns were pleased.
鈥淥ur 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鈥檛 true and that violate their deeply held convictions,鈥� 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鈥檚 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.
鈥淭here are going to be significant changes across government based on the instruction from the president to discriminate against transgender people,鈥� Strangio said. 鈥淲e 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.鈥�
