How Biden’s efforts to protect trans students are primed to stumble

Three words in the Constitution are crushing Miguel Cardona’s efforts to protect transgender students in the classroom: freedom of speech.

The Education secretary believes students have the right to be called “he,” “she,” “they” and other pronouns in school that match their gender identity. The courts see it differently.

Shawnee State University in Ohio paid out $400,000 in April to Nick Meriwether, a professor who sued the institution for violating his rights and levying an unfair punishment when he refused to refer to a transgender student by her pronouns. Similar cases have occurred at public schools across the K-12 level, including in Virginia and Kansas, with educators suing on the grounds that using pronouns they don’t agree with violates their First Amendment rights to free speech and the exercise of their religion.

Cardona’s new proposed rule for Title IX, the federal education law that prohibits sex-based discrimination, is expected to go public in June and include protections based on sexual orientation and gender identity for the first time. Enforcing the policy may prove difficult for Title IX administrators. And the pending rule will tee up more legal battles over competing philosophies on gender ideology, forcing institutions to tiptoe between potentially costly settlements in courts and protecting transgender students on campus.

“It's very hard to say to a student: 'I know that you are being othered. I know that you are being treated as less than. I know that you are not being honored in your identity,'” said Brett Sokolow, president of the Association of Title IX Administrators, “'and we as an institution can't do anything about it.'”

Political tension has escalated in the past two years over transgender students’ access to bathrooms and locker rooms that match their gender identity and which sports teams they play on. It's unclear how the courts will ultimately resolve those cases, but pronouns appear to face a more difficult legal landscape.

Misgendering and refusing to use the correct pronouns are the most common Title IX complaints filed by transgender students, administrators say, and using the right gender pronouns is vital to inclusivity, according to The Trevor Project, a nonprofit that focuses on LGBTQ mental health. While a student’s complaint is covered by the Title IX office, getting a faculty member to comply may be a challenge after Shawnee State’s court case and recent settlement.

Judge Amul Thapar, a Donald Trump appointee to the 6th Circuit Court of Appeals, in what is considered the first major ruling on the use of pronouns in the classroom, wrote Shawnee State University “punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.”

Lawsuits over pronouns aren’t a regular part of the Title IX process. Educators say they aren't looking to intentionally harm their students by refusing to use their pronouns and, most of the time, Title IX investigators say they are able to reach a solution that’s agreeable to both sides.

“But 20 percent of [educators] or so are dug in and they're doing this as a political statement,” Sokolow said. “They want the publicity and they want the school to try to punish them because then they can make this a cause and they can pose this as the conflict of woke ideology against the maintenance of traditional values.”

In the courts

Alliance Defending Freedom, a conservative Christian legal group, is one of the organizations at the center of pronoun challenges in court — and it says they've kept their arguments simple.

“The Supreme Court has been very clear throughout its opinions on speech,” said Ryan Bangert, ADF’s senior counsel and vice president of legal strategy. “Freedom of speech always includes the right not to speak messages that cut against the speaker's core belief. And that's precisely what these policies do.”

The same strategy is also being applied to a case in Kansas at the K-12 level, Bangert said. Kansas middle school teacher Pamela Ricard sued USD 475 Geary County School Board in March over a policy that required her to refer to students by their preferred first name and pronouns that match their gender identity. But the school’s policy prohibited her from using a student’s pronouns and names when speaking to their parents.

While the district court this month found that Ricard was “unlikely to experience irreparable harm” from the school’s enforcement of its policy, it granted a preliminary injunction saying Ricard’s “free exercise claim” has merit.

Ricard “has testified that she is a Christian and believes the Bible prohibits dishonesty and lying,” the court wrote. “She believes it is a form of dishonesty to converse with parents 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 pronouns.”

The opinions largely apply to the individual plaintiffs, Bangert said, though ADF believes that if the Title IX rule is finalized with protections for transgender students and includes pronouns, the “principles apply generally and others who find themselves in the same situation can surely take advantage of those opinions.”

Other cases are also emerging, including one in Virginia where a high school teacher said he was fired for refusing to use a student’s pronoun. Tension is also escalating in Wisconsin after a school district filed a Title IX complaint against three eighth-grade boys over using incorrect pronouns when addressing another student.

Bangert, however, said that the educators ADF has represented in court have “sought to find the middle ground,” which school districts have rejected. This includes using last names or sometimes a student’s preferred name, but not their pronouns or titles.

Despite the First Amendment challenges, advocates for transgender and nonbinary students say they’re confident the Biden administration will continue to push to protect these students.

“Previously, we didn't have a Department of Education that was willing to step up and really push back against some of these challenges that existed,” said Alexis Rangel, policy counsel at the National Center for Transgender Equality, a nonprofit advocacy group. “But our voices are being listened to in ways that they never have been before, including by the most vocally supportive administration for trans people in the history of our country.”

Enforcement challenges

Education Department officials last June announced transgender students are covered under Title IX, a return to Obama-era discrimination protections for the group after they were revoked under the Trump administration.

The Biden administration’s interpretation of the law, which bans discriminating against someone based on sexual orientation and gender identity, is based on the landmark 2020 Supreme Court ruling in Bostock v. Clayton County. It also makes good on an executive order issued by President Joe Biden that said the court case about transgender rights in the workplace applies to Title IX.

“It's essential for schools to be welcoming environments," Cardona said in March, a statement the Education Department pointed to when asked about the pronoun lawsuits. “We know transgender students are among the most vulnerable not because of who they are, but because of the hostility directed at them.”

Despite the Biden administration’s best efforts to codify a rule to protect transgender students, legal challenges may hinder a school’s ability to enforce the pronoun part.

In higher education, colleges may be less likely to take on pronoun complaints against professors through a formal Title IX process due to fear of costly settlements — though, they will be required to investigate an issue. Academic freedom is also an issue, said Alyssa-Rae McGinn, vice president of investigations at Dan Schorr, LLC, a firm that specializes in Title IX cases.

“In any situation where something like academic freedom, freedom of speech or freedom of expression comes up in response to a claim of harassment, the decisionmaker essentially has to decide, ‘Was it a reasonable exercise of those rights?'” McGinn said. “'Did it infringe on this other person's right to not be discriminated against on the basis of their gender?'”

The number of Title IX complaints from LGBTQ students is far lower in K-12 than higher education, and K-12 Title IX complaints usually stem from reports of sexual misconduct, McGinn said. “A lot of schools don't really consider the pronouns issue and preferred names … as rising to the level of a Title IX issue, unless it meets that severe pervasive and objectively offensive standard.”

Educators refusing to use pronouns, McGinn said, is “at the most basic level, the kind of microaggressive behavior that chips away at a person, disaffirms a person and really continually reinforces that you are not your gender.”

But using correct pronouns could also be the difference between life and death for transgender and nonbinary youth, who are more vulnerable than their peers to suicidal ideations, according to The Trevor Project’s annual report on LGBTQ youth mental health. More than half of transgender youth contemplated suicide in the past year — and suicide risk is higher for LGBTQ kids ages 13 to 17.

Many schools are trying to balance these mental health risks with student privacy laws, their federal obligation to investigate a claim and cases where a child might not be out to their families.

“The school has to decide: ‘Are we in a jurisdiction where what we know, parents have a right to know?’” said Sokolow, the president of ATIXA. “‘Are we supposed to shield these children from their intolerant parents and help them in this transition process where they can at least live their true selves in school?”

“It's a nightmare,” he said. “Schools are caught between the kids and the parents.”