Yesterday was the first day of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month. At Thompson & Horton, we will recognize Pride Month alongside the 50^th Anniversary of Title IX with free weekly webinars throughout June (Thursdays at 1 p.m. starting today!) and blog posts focused on Title IX, including LGBTQ+ issues facing schools, colleges, and universities.

Perhaps the hottest story in the Title IX/LGBTQ+ world right now involves Kiel Area School District. The Wisconsin school district has received multiple bomb threats and tremendous media attention and scrutiny regarding complaints against three eighth-grade students alleged to have created a hostile environment for a peer by refusing to use the student’s preferred pronouns. As with many things “Title IX,” untangling the truth from the fiction can be a challenge, particularly when there is so much pandemonium around the case. Here’s what you need to know about this case and how it might impact your school, college, or university.

What Happened?

On March 29, 2022, Kiel Area School District received a formal complaint of sexual harassment alleging “mispronouning.” Mispronouning, sometimes referred to as “misgendering,” is when someone uses a non-preferred pronoun with a person. Often, a person uses the pronoun corresponding to their gender assigned at birth. But people sometimes prefer other pronouns, for various reasons. Transgender students may prefer to be identified with the pronoun that matches their gender identity. Others, both cisgender and transgender, prefer the gender-neutral pronouns “they/them.” Individuals prefer gender-neutral pronouns for many reasons, including non-identification with either gender and protesting a gender stratified society.

The following month, the District notified three students that an investigation had been opened against them for “mispronouning” under the District’s Title IX sexual harassment policies. The complaint identified the allegation as follows: “After being informed that a student’s preferred pronouns were ‘they/them,’” the alleged perpetrators “engaged in conduct based on gender identity toward the student, including using incorrect pronouns and conduct that was harassing in nature.”

On May 12, 2022, the Wisconsin Institute for Law & Liberty (WILL) sent a letter to the Superintendent, Title IX Compliance Officer, and Title IX investigator for Kiel Area School District in Kiel, Wisconsin demanding that the District withdraw investigations against three boys charged with Title IX violations.

The case has put the community and District in the center of a dispute over transgender rights that has been raging within the educational world for some time. Between May 12 and May 20, the District received many communications that it described as “vulgar, hateful, and disturbing.” Its Board meeting had to be moved online because of security threats. In the subsequent days and weeks, the District received multiple bomb threats because of the investigation.

Can ”Mispronouning” Be Sexual Harassment Under Title IX?

The basis of the complaints to the school, both those by WILL and those by members of the public, seem to be that the school should not have opened the investigation. The argument is that “mispronouning” is speech and cannot be a violation of Title IX. That is an incredibly simplistic view of the law that is not true.

Here’s what we know:

1. Misgendering or mispronouning someone is protected speech. Courts have recognized that refusing to use a person’s preferred pronoun is speech protected by the First Amendment. Perhaps the most well-known recent case involved Nick Meriwether, a philosophy professor at Shawnee State University in Portsmouth, Ohio. He prevailed in the Sixth Circuit Court of Appeals after being disciplined for not using she/her pronouns to refer to a transgender woman in his class. Meriwether claims that his religion prevents him from using pronouns that do not match a person’s sex assigned at birth. Notably, however, in Meriwether, the college did very little to accommodate the professor’s religious objections. He was not allowed even to put a statement on his syllabus saying that he would use preferred pronouns but disagreed with doing so because of his religion. And Meriwether made a plausible argument that using gendered terms for students in his class was part of his pedagogy. Because he was a college professor with academic freedom rights, it is not terribly surprising that, on those facts, the court found in favor of Meriwether. As Politico recently reported, cases involving K-12 employees making similar arguments are making their way through the courts, including in Virginia and Kansas,
2. The First Amendment is Not Absolute. Courts have never held that the First Amendment is absolute. Just because speech is protected does not mean it’s off-limits; a public entity is just required to jump through more hoops to regulate that speech. That includes Meriwether, the Virginia and Kansas cases cited above, and an important K-12 case from Indiana that found that a school properly ousted a teacher for refusing to respect pronouns. In that case, Kluge, the court refused to follow Meriwether, noting that K-12 schools are different from universities when addressing free speech and other constitutional concerns.
3. What’s the Test for Students? Most of the cases that have addressed the interplay between misgendering and the First Amendment in schools, colleges, and universities have dealt with employees. But, there are different tests for students and employees under the First Amendment. The Kiel case drags us into unchartered waters by questioning whether a student can engage in sexual harassment by misgendering another student. The most likely applicable test comes from a 1968 U.S. Supreme Court case, Tinker v. Des Monies ICSD, which requires showing that student speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Courts have regularly recognized that speech that rises to sexual harassment can meet the Tinker So, the question for the Kiel School District’s investigation will be whether the standards for sexual harassment are met. The First Amendment will not likely be violated if the school disciplines the speech if they are.
4. Even the Trump OCR Recognized Title IX Applies to Discrimination, Including Harassment, Based on Gender Identity. Although the Trump OCR took the position that Title IX does not require giving transgender students equal access to facilities (bathrooms, locker rooms) or athletics (particularly transgender girls’ access to female sports teams), even they recognized at the very end that Title IX prohibits discrimination, including harassment, against individuals based on their LGBTQ+ status. In an August 2020 letter, the Trump OCR explained: “[W]ith respect to complaints that a school’s action or policy excludes a person from participation in, denies a person the benefits of, or subjects a person to discrimination under an education program or activity, on the basis of sex, the Bostock opinion guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.” There is no question that OCR, under current President Joe Biden, would interpret Title IX to require equal treatment concerning all aspects of the education program or activity, including facilities and sports teams. But there is no doubt that if a student is harassed based on their gender and meets the Title IX sexual harassment standards, it would violate Title IX.
5. What is the Relevant Title IX Standard? The same standard applies to harassment based on gender identity as other harassment based on sex: Is there unwelcome sex-based conduct that is so severe, pervasive, and objectively offensive that it effectively denies equal access to the school’s education program or activity. The big question with “mispronouning” is likely to be the question of severity. We don’t know how that element applies to misgendering, so educational institutions must go back to the first principles to determine if the conduct is severe. One place to start would be to think about how the case would be decided if the alleged victim were a cisgender female student called a “slut” or a cisgender male student called a “pussy.” Age, circumstances, and frequency of the conduct, among other factors, may come into play.

Is the “Mispronouning” in This Case “Sexual Harassment”?

Here’s the thing: We can’t know! The school did the right thing here, recognizing that mispronouning or misgendering could be sexual harassment. It did just what I train folks to do—don’t make any determination on the merits of the allegation until you know the facts. If a student alleges they have been sexually harassed, and the conduct, if proved, could be Title IX sexual harassment, you trigger the Title IX process and begin an investigation if you have a formal complaint.

We must wait to see whether we can learn any of the facts gathered in the investigation. And we may never know what information is uncovered because of privacy considerations. Without such information, there is no basis to criticize the school’s actions in opening a complaint.

As the District explained in a statement: “Under federal law, when the District receives a report of harassment based on sex, including gender identity, the District is obligated to act.” It was, and it’s a shame that it is receiving so much negativity for investigating as required by the law.