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Legal Updates from KLO

Wisconsin Court Holds a School Cannot Use Preferred Pronouns or Names Without Parental Permission

Posted on January 30, 2024

Important Takeaway: A Wisconsin Circuit Court judge held that the use of preferred pronouns and names by students is a medical issue and therefore schools cannot use these pronouns and names without parental permission.

Facts: Parents of a student filed a lawsuit against Kettle Morane School District (the District) alleging that their policy that allows, facilitates, and affirms minor students’ requests to transition to a different gender identity at school without parental consent, violated parental rights. The District had allowed their child to use their preferred pronouns and names at school. Both the parents and the District asked for summary judgment. Summary judgment can only be granted where there are no material issues of fact. The parents alleged they were entitled to summary judgment because there are undisputed facts that the District has a policy that violates parental rights. The District alleged they were entitled to summary judgment because the plaintiffs did not identify a fundamental right the District may have violated.

The Court found that parents have a fundamental liberty interest in making decisions regarding care, custody, and control of their children. The state only has an interest when the child’s physical and mental health or welfare is in jeopardy. Even when the state has an interest, their action must be narrowly tailored to that interest. The Court found that just because the parent’s decision is not agreeable to the child does not automatically transfer the power to make that decision from the parents to the state.

The Court found the parents had introduced uncontested expert affidavits explaining the choice to use pronouns or names is a medical issue. The affidavits also contained information from doctors that it is inherently psychologically unhealthy for a child to live a double life where their gender roles are different at home and school. The District put forth no evidence to show that this was not a medical and healthcare issue. The Court held because it was a healthcare issue, the District went against the parents’ wishes on how to medically treat their child and infringed on the parental autonomy right to direct the care for their child.

The Court found that the District cannot change the pronouns of a student without parental consent without impinging on a fundamental liberty interest of the parents.

The District alleged it violate Title IX if it did not respect the student’s pronouns as the Department of Education released guidance noting that gender identity is encompassed in the definition of sex under Title IX. The Court found that this guidance was not in effect because of a federal district court ruling in Texas, and even if it were in effect, it would only be persuasive and not binding. The Court found Title IX was not applicable in this situation because of a 7th Circuit decision holding that transgender issues were not applied to Title IX. The District’s policy involved transgender students and gender identity is not within the definition of sex under Title IX, the Court held.

The District argued the plaintiffs had no standing because there was no formal policy allowing the use of a student’s preferred pronoun or name without parental permission. The Court held that by failing to develop any formal policy either way, the District had created an informal policy of using student’s preferred names and pronouns without parental permission.

The Court granted summary judgment in favor of the plaintiffs.

What this means: The 8th Circuit also recently struck down a policy requiring staff and students to respect a student’s gender identity and pronouns because the policy was too broad. Montana, which is in the 9th Circuit, has also passed legislation that did not allow a school to use a student’s preferred pronouns without parental permission. This legislation has not been challenged, although we expect to see policy and legislation challenges around these issues. Until this law is challenged or the 9th Circuit Court of Appeals holds this type of law to be unconstitutional, school districts are required to follow this law. With cases such as this showing up all over the country, we expect that this issue will be addressed by the 9th Circuit, and we will post updates as that happens.

About this case: T.F. v Kettle Moraine School District, State of Wisconsin Circuit Court- Branch 8, October 2, 2023. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, Kevin, and Kali at 406-542-1300 to discuss these issues.

Kaleva Law

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