The Most Important Thing to Remember in the Next 4 Years

There are a lot of thinkpieces circulating from diversity, equity, inclusion, and justice (DEIJ) professionals about the future of inclusive, equitable, and accessible organizations.

“Is DEI dead?” “Are we in a post-DEI world?” (Yes! No! Rename it!)

But at Imprint Legal Group, we are lawyers in addition to being DEIJ professionals. We look at compliance and culture.

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And there’s one thing we want all leaders to remember over the next four years:

Political headlines are not legal obligations.

Lawsuits are not legal obligations.

Press releases are not legal obligations.

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Please talk to a lawyer before you read a headline and start thinking about changing your organizational policies, HR practices, or training requirements. 

For example, several states filed lawsuits in 2024 that challenged the 2024 Title IX regulations, particularly the protections for LGBTQIA+ students. While the lawsuit was working its way through the courts, several states’ Departments of Education issued “alerts” or press releases informing schools that they should not provide protections to LGBTQIA+ students.

These “alerts” looked official and quite scary, which is what they were designed to do. When your state’s Attorney General issues a legal directive on official letterhead, most leaders assume that’s law.

It’s not.

If schools had listened to those press releases and headlines, they would have been in violation of federal law and risked the loss of federal funding.

At the time of these press releases, the lawsuit was still working its way through the courts, and any attorney worth their salt would have advised clients to continue abiding by the 2024 Title IX regulations until there was a judge’s order with jurisdiction over their school.

Even in January 2025, after the Title IX lawsuit was adjudicated and the OCR acknowledged the 2024 Title IX regulations were effectively dead, there are still states that are mandated under different courts’ jurisdictions to provide LGBTQIA+ students protection under Title IX.

Similar “freak out” moments and knee-jerk reactions occurred at workplaces after the U.S. Supreme Court ruled against affirmative action in higher education in SFFA v. Harvard University - even though the ruling had nothing to do with workplaces, supply chains, or investments.

We received a rash of calls after headlines about shutting down the federal Department of Education - even though nothing legal has been accomplished or proposed, even in the slew of executive orders issued and headlines generated.

Relying on headlines instead of a civil rights lawyer’s analysis would be an epic mistake that jeopardizes hundreds of thousands of dollars.

The legal landscape is more complex than ever. We have a new standard for legal deference under Loper, which is changing the way courts have interpreted agency actions for forty years.

We know politicians are prone to releasing executive orders, press releases, and newsletters that can be inflammatory. We know the press is prone to sensationalizing headlines and generating click bait.

If we’re going to keep our organizations both legally compliant and culturally inclusive over the next four years, the most important thing to remember:

1. Read the headline. 

2. Take a breath.

3. Email hello@imprintlegalgroup.com and ask “What does this really mean for me?”

Imprint Legal Group advises schools and businesses on legal compliance and inclusive cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of January 21, 2025.

Imprint Featured in National Education Publications

Imprint Legal Group founder Jessica Heiser and Imprint Legal Group consultant Dr. Maria Lewis lent their expertise to the National Association of Secondary School Principals this month.

In their leadership piece “The Complex Legal Landscape of Title IX”, Heiser and Lewis detail the rapidly changing legal landscape that can create implementation issues for schools and families:

“In the 2024–25 school year, it is possible that one school district operates under the 2024 Title IX regulations and a neighboring district down the road operates under the 2020 regulations.

It’s even possible that an elementary school and high school in the same district operate under different federal regulations.”

Read the full article here: Legal Matters: October 2024 | NASSP

Heiser and Lewis were previously featured in the National Association of Secondary School Principals leadership article, “Working With Attorneys to Navigate Gray Areas in the Law,” in 2023.

Heiser was also recently featured in Special Education Connection, the leading resource for special education administrators nationwide, regarding manifestation determination meetings: the legally-mandated team meetings that occur when a student is removed from the school for 10+ days due to discipline. Heiser emphasized the need for families and school staff to “take time to review evaluations, previous assessment reports, historical data, grades, discipline data, and classroom observations to see if there are patterns [in the student’s behavior.]

"The thoroughness of a good [manifestation determination meeting] doesn't come quickly. You can have it fast, or you can have it good. You can't have it both," she said.

Heiser has been previously featured in Special Education Connection for her expertise on Title IX and Section 504 (2023), doctor’s notes in special education (2021), and Section 504 eligibility (2021).

Read the full articles here: Special Ed Connection.

Imprint Legal Group advises schools and businesses on legally compliant and culturally inclusive cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of October 2024.

Back-to-School Civil Rights Issues

As the 2024-25 school year gets underway, there are 5 hot-off-the-press cases about civil rights in K-12 schools that you should know about, from Palestine to Title Nine:

DISABILITY

Summer Move-In IEPs

During the summer, a student moved from Pennsylvania to Minnesota. He had a 105-page IEP (what the…?!).

The family enrolled the student a week before the school year started in September. The school and family met to discuss providing “comparable services” to the Pennsylvania IEP, but they had a disagreement about the appropriate placement and services. The family acquiesced to sending the child to school in late September, but problems continued.

By December, the school district had evaluated the student and developed a Minnesota IEP. The parents filed a complaint, arguing the school should have had an IEP in place on the first day of school. The school disagreed, arguing that the Individuals with Disabilities in Education Act (IDEA) provision about first-day IEPs (34 C.F.R. § 300.323(a)) doesn’t apply to late-summer transfers from out of state and they did provide services comparable to those in the student's Pennsylvania IEP until they developed a new one.

The state court agreed with the parent:

If the student enrolls during the school year, the court observed, the district must provide services comparable to those in the student's previous IEP until it adopts that IEP or develops a new one. For summer enrollees, the district must have an IEP in place on the first day of school.

Read more here: Special Education Complaint 23-157C on behalf of A. M. A. from Rochester 0535-01 (July 2024)

SEX & GENDER

Title IX Injunctions: A Nation Split

The U.S. Supreme Court weighed in (or more appropriately, refused to weigh in) on the messy roll-out of the 2024 Title IX regulations.

In most of the lawsuits by conservative states and groups, the plaintiffs asked the courts to block the provisions of the 2024 Title IX regulations that provided protections for students on basis of gender identity. The courts granted preliminary injunctions (“pause buttons”) on the entire application of the 2024 rules, not just the challenged gender-identity provisions.

The U.S. Department of Education asked the U.S. Supreme Court to narrow the lower courts’ rulings so they could still enforce the parts of the 2024 regulations that were not challenged (i.e., “let us enforce the parts nobody had a problem with!”)

In a 5-4 decision, the U.S. Supreme Court decided to let the lower courts’ rulings stand. This is not a ruling on the substance of the 2024 Title IX regulations, but the process.

The 2020 Title IX regulations will continue to be applied in 26 states and these individual schools as these cases work their way through courts and federal elections occur. Twenty-four other states will use the 2024 Title IX regulations. OCR has also confirmed this approach.

Read more here: U.S. Department of Education v. Louisiana (August 2024)

Great resource here: ATIXA Injunction Tracker

ETHNICITY & RELIGION

Israel-Palestine Speech

Since June 2024, the U.S. Department of Education’s Office for Civil Rights (OCR) has resolved 5 cases regarding student speech on the issue of the Israel-Palestine Conflict or Gaza Genocide.

In all 5 cases, OCR determined the schools woefully under-responded to complaints of discrimination based on national origin, including shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry.

OCR has re-emphasized schools’ obligations under Title VI of the Civil Rights Act in two recent Dear Colleague Letters: November 2023 and May 2024.

OCR writes: “The offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title VI. OCR evaluates the conduct from the perspective of the student who is allegedly being harassed and from the perspective of a reasonable person in that student’s position, considering all the circumstances.” Pro-Palestine speech is not automatically Antisemitic speech, and pro-Israel speech is not automatically anti-Muslim speech. A thorough analysis of hostile environment and disruption to the school environment is necessary under the law.

Read more here: Resolution Agreement, Brown University, OCR Complaint No. 01-24-2116 (July 2024).

FIRST AMENDMENT VS. DISCRIMINATION:

“There Are Only Two Genders” Shirt

A twelve-year-old student with a penchant for wearing shirts with messages like Don’t Tread on Me and Let’s Go Brandon wore a shirt to school reading “THERE ARE ONLY TWO GENDERS.”

After receiving student and staff complaints about the “two gender” shirt, Massachusetts middle school administrators determined the “two gender” message would “demean the identity of transgender and gender non-conforming” students, who had faced bullying, harassment, and suicidal ideations. The administrators told the student to take off the shirt or leave school. His dad picked him up and he missed half a day of school.

The First Circuit Court of Appeals upheld the school district’s decision. In determining the school’s competing obligations under the First Amendment and anti-discrimination laws, the court held that school administrators were in a better position than judges to determine what might be disruptive to the school environment. The school demonstrated an atmosphere of anti-LGBTQIA+ sentiment that had led to student suicidal ideations and bullying influenced their decision.

Read more here: L.M. v. Town of Middleborough, 1st Cir., No. 23-1535 (June 2024).

RELIGION & GENDER:

Religious Opt-Out from LGBTQIA-Themed Curriculum

A Maryland school district added 22+ books with LGBTQIA+ themes to its language arts curriculum for teachers to use in the classroom if they so choose. Some parents requested that the school district provide notice to families before these LGBTQIA+ themed books were used in the classroom, and an opt-out option.

When the school district did not allow parents to opt-out of lessons, some parents sued, arguing that the mandatory attendance policy violated their rights to direct their children’s religious upbringing, free speech, and due process rights.

The Fourth Circuit Court of Appeals ruled the school district did not have to allow parents to excuse their kids from classroom lessons involving LGBTQIA-themed books. The court wrote: “mere exposure to views contrary to one's own religious beliefs [does not] necessarily constitute a cognizable burden" on the free exercise of religion.

Read more here: Mahmoud v. McKnight (May 2024).

Imprint Legal Group advises schools and businesses on legally compliant and culturally inclusive cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of August 2024.

Title IX Mess: Injunction Junction, What’s Your Function?

If there was one word to sum up the Title IX regulations over the last five years, it would be…

SIGH.

First, President Trump

In May 2020, President Trump’s administration issued new Title IX regulations. In the midst of Covid-19, schools scrambled to revise their policies and create new investigatory procedures.

Then, the Supreme Court

In June 2020, the Supreme Court ruled in Bostock v. Clayton County that employment discrimination on the basis of “sex” included protections for gay and transgender people. This was limited to Title VII, but Title VII has the same language as Title IX.

Then, President Biden

By January 2021, President Biden’s administration promised to roll back many of Trump’s changes to Title IX and memorialize protections for LGBTQIA+ students.

In April 2024, after we heard “We promise new Title IX rules are coming!” for years, the new rules were finally released. They protected LGBTQIA+ students, pregnant and parenting students, and changed procedures and definitions.

Schools again scrambled to revise Title IX policies and procedures within 104 days: They had to be compliant with the new 2024 rules by August 1, 2024.

Then, Red States Sued

Within a week of the new Title IX rules, lawsuits by conservative groups and states popped up all over. At current count, 26 states and conservative organizations like Moms for Liberty have sued the federal government to stop the implementation of these regulations.

Their main (only) concern? The 2024 regulations explicitly protect LGBTQIA+ students, effectively codifying in administrative law the protections under Bostock.

Now, the Injunctions

At this time, 2 judges have issued preliminary injunctions (“pause buttons”) that apply to 10 states: ID, IN, KY, LA, MS, MT, OH, TN, VA, and WV. State of Tennessee, et. al. v. Cardona et. al. (E.D. KY 2024); State of Louisiana et. al. v. Department of Education (W.D. LA 2024).

An injunction is a court order requiring someone to either perform or stop performing a specific action. In this case, these preliminary injunctions mean that schools in those 10 states (and probably more, when it’s all said and done) CANNOT implement the 2024 regulations and must stick with the 2020 version.

The injunctions stopped the WHOLE application of 2024 Title IX regs in those 10 states, NOT ONLY the LGBTQIA+ protections.

But Four States Are Special

In the midst of all this ping-ponging over the last handful of years, several federal courts have already decided that Title IX does, indeed, protect LGBTQIA+ students.

Schools in 17 states in the 4th, 7th, and 9th Circuits have solid federal court rulings that Title IX protects LGBTQIA+ students. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915 (7th Cir. 2023); G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020); Grabowski v. Arizona Board of Regents, 69 F.4th 1110 (9th Cir. 2023).

Although the U.S. Supreme Court had its chance, it has refused to hear (or overturn) any of these cases thus far.

Here’s the rub.

Seventeen states (on the right) have Title IX protections for LGBTQIA+ students through cases decided by the highest level of federal court under the U.S. Supreme Court (4th, 7th, and 9th circuits) between 2017-2023.

Ten states (on the left) have preliminary injunctions to not enforce the 2024 Title IX regulations, which protect LGBTQIA+ students, at lower-level federal courts (E.D. KY and W.D. LA).

Four states overlap.

In these 4 states (Indiana, Montana, Virginia, and West Virginia), Title IX continues to protect LGBTQIA+ students regardless of the status of the preliminary injunction.

If you are in one of these 4 states, consult with local attorneys. There are parts of the 2024 Title IX regulations that should be adopted as best practices, regardless of the injunctions, like coordination between an IEP Team and Title IX Coordinator when a situation involves a student with a disability.

Schools can likely hold off on creating new policies and procedures, but must continue protecting LGBTQIA+ students under Title IX. Which has the bonus of being the right thing to do anyway.

It’s not like we have anything else going on.

These preliminary injunctions (and others yet to be decided) will continue to move through the federal courts, perhaps even reaching the U.S. Supreme Court at some point.

Remember, the U.S. Supreme Court has already ruled in Bostock that “sex” under Title VII applied to gay and transgender employees, so it is unlikely that the court would rule profoundly differently under Title IX (the court has not dramatically shifted ideologically since its 2020 Bostock ruling: the majority opinion in Bostock was written by Trump-nominated Justice Gorsuch).

In the midst of this mess, we’ll have a national election, a U.S. Supreme Court ruling about the Chevron Doctrine, and God knows how many other state laws regarding LGBTQIA+ students.

Buckle up, folks. It’s going to be a bumpy ride.

Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of June 22, 2024.

Three Best Practices Almost All Title IX Investigations Miss

After collectively conducting approximately 100 Title IX investigations in 5 states, Imprint Legal Group lawyers and DEIJ practitioners have seen school administrators and attorneys consistently make these 3 mistakes:

Yes, this is what we look like when we conduct our Title IX investigations.

MISTAKE #1: Not giving consistent updates to the parties.

When a formal Title IX complaint is filed, an investigation can take months. Title IX regulations (34 CFR 106.45(b)(5)(v)-(vii)) require the investigator to give the parties updates at specific times, such as written notice of meetings. But expert-level investigators (like, ahem, Imprint Legal Group’s Title IX investigators) keep the parties updated about the investigation’s progress on a weekly basis, even if there is no substantive update or legally mandated communication to give.

Re-assuring the parties that the process is still unfolding, even if they can’t see all the moving pieces, creates buy-in and comfort in a otherwise confusing and scary situation.

See a sample “Weekly Update” email below:

View fullsize

MISTAKE #2: Skipping obvious points in the investigation report.

Far too often, the Title IX investigator is a school administrator or school’s usual attorney who already knows the situation well. These people tend to skip crucial steps when writing an investigation report simply.

They’ll write: “Mr. Johnson told the Complainant to move to another lunch table.”

But WHO IS MR. JOHNSON?!

Well, everyone in the school district knows that Mr. Johnson is the assistant principal! He has been for twenty years! Duh!

But that’s not obvious to someone else reading this report in two years, who has never met the parties or seen the school environment. The investigative report must “fairly summarizes relevant evidence” (34 CFR 106.45(b)(5)(vii), but the investigator should draft the report for an audience that might include an OCR investigator, a judge, or an attorney in the future.

At a bare minimum, the investigation report should describe:

• the parties’ and witnesses’ age, gender identity, and grades (or title for employees)

• the school location, including a physical description of the location in which the alleged harassment occurred

• all the folks in charge of the school location or incident, their names and titles

MISTAKE #3: Not casting a wide net for evidence.

Title IX regulations require the investigator to conduct “an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence.” 34 CFR 106.45(b)(1)(ii); 34 CFR 106.45(b)(5)(vii).

But in general, we see investigators cast way too narrow of a net.

Investigators need to cast a wide net when looking for potentially relevant evidence

Under 34 CFR 106.30(a), sexual harassment means “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity.”

Looking for evidence of “denying equal access” might include grades declining, attendance and/or participation in school (academics and/or extracurricular activities) declining, or even attendance and/or participation in a specific class declining.

Investigators should engage in a careful examination of a wide variety of potentially relevant school records, including but not limited to the parties’:

• historical grades and progress reports

• historical attendance reports

• IEPs and Section 504 plans, if applicable

• sports scores if the relevant individuals are student-athletes

• visits to the school nurse or counselor/social worker

• historical disciplinary reports, going back to initial enrollment of a student

Want to Know More?

Imprint Legal Group conduct Title IX investigations for K-12 schools, colleges, and universities nationwide. Imprint Legal Group is proud to sponsor the first inaugural Title IX in the 7th Circuit Regional Network for Title IX practitioners in Illinois, Indiana, and Wisconsin.

Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of April 2024.

What Would Phil Jackson Do?

In 1998, the Chicago Bulls were on their way to their sixth national championship in eight years. Michael Jordan, Scottie Pippin, and Dennis Rodman were leading a team coached by Phil Jackson - all at the top of their game (pun intended).

But Dennis Rodman was not a traditional player.

In fact, if the Bulls had been looking for a “fit to our culture,” as so many workplaces do, instead of “an add to our culture,” it’s likely Rodman would never have been in Chicago.

Rodman’s individuality caused some concerns for the team, as documented in documentary "The Last Dance”. But Rodman kept delivering results.

…Until he didn’t.

In the middle of the 1997-98 postseason, Rodman’s stats stalled. “When Scottie was out [injured], Dennis was a model citizen, to a point where it was driving him f—ing insane,” Jordan explained. When Pippin returned to the team, Rodman asked for a vacation to “let loose” in Las Vegas. This request was unheard of. There were mandatory practices and media sessions! If a player missed any of these, they owed tens of thousands of dollars in fines.

And everyone was working harder than ever. Jordan said, “If anyone needs a vacation, I need a vacation!”

But Coach Phil Jackson gave a green light for Rodman to “let loose” and party in Vegas for 48 hours.

IN THE MIDDLE OF THE POSTSEASON.

48 HOURS IN VEGAS.

TO PARTY.

WHILE THE REST OF THE TEAM WAS WORKING HARDER THAN EVER.

The rest, as they say, is history.

Dennis Rodman partied in Vegas with Carmen Electra. He came back to the team before Game 4 against the Utah Jazz. And he performed better than ever.

Rodman’s rebounds, free throws, and scoring percentage all improved after his Vegas trip.

In games 1-3, Rodman scored 5 points.

In games 4-7, after Vegas, Rodman scored 15 points.

The Bulls went onto win their sixth national championship in eight years.

Phil Jackson’s approach is a great example of a leader who values equity, not equality.

What’s the difference between equity and equality?

Equality is assuming everyone needs the same thing.

Equity is recognizing that different people need different things.

Coach Jackson wasn’t giving every player the green light to party in Vegas. He knew that not every player was facing the same circumstances and challenges.

Certainly, there were players who thought Rodman’s escapade was unfair (Michael Jordan even said, “I’m the one who needs a vacation!”) But the coach knew that this particular thing was what this particular person needed in order to be successful for the team. This is about equity of opportunity.

To get to the goal (a championship), the coach provided equitable support (a short mental health break to one player).

The whole team achieved in the end.

Culturally competent leaders lead with an equitable lens because their eye is on the ultimate team goal.

Maybe that means allowing remote work, a standing desk, a peanut-free lunch for certain employees. But keeping the focus on one question: What does each person need to get our team to its goal? How do we create equitable opportunities for everyone to succeed?

The ‘98 Bulls is one of the 14 stories our experts present in our Curious Conversations series, introducing groups to cultural competent leadership through fun, relatable experiences over food.

So much fun that 92% of attendees recommended Imprint Legal Group’s culturally competent leadership workshops.

And because who doesn’t enjoy eating chips and queso while talking about Dennis Rodman?!

Imprint Legal Group advises businesses on culturally humble leadership and inclusive cultures as long-term risk management. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of March 2024.

Herring (Yes, the Fish) May Overturn Transgender Bathroom Cases

The U.S. Supreme Court made some big moves in January around transgender students in school bathrooms.

On January 16, 2024, the court refused to take a case that would have answered the national question about school bathrooms for trans* students.

But the next day, they heard a case about fish that likely do just that (and more).

Yes, fish. 

It Starts with the Chevron Doctrine

Yes, technically, Chevron references Chevron oil and gas company. But Chevron pattern is more fun.

In 1984, the U.S. Supreme Court (SCOTUS) heard a case called Chevron v. Natural Resources Defense Council. In Chevron, SCOTUS looked at how federal agencies enforced laws passed by Congress.

SCOTUS decided that judicial deference is appropriate where the federal agency’s rule is a “reasonable” interpretation of an “ambiguous” law.

The Chevron Doctrine says: “Federal agency, you’re the experts on the ground doing this work, day-in and day-out. If Congress hasn’t explicitly said what a law means, we trust that you have the expertise to fill in the blanks. The court will defer to your interpretation of an ambiguous law.” 

While it's been narrowed and revised since 1984, the Chevron Doctrine is a widely understood precedent. It’s also a political lightning rod for judges, as conservatives have argued that courts – rather than federal agencies – should say what the law means.

Is Chevron Finished?

After 40 years, it looks like SCOTUS wants to dramatically change, or even throw out, the Chevron Doctrine and its progeny. 

On January 17, 2024, the court heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce (“Loper”).

In that case, Congress passed a statute that said the National Marine Fisheries Service (a federal agency) may require fishing vessels to carry federal observers on board to prevent overfishing. 

The statute wasn’t clear about who paid for those federal observers.

To enforce this statute, the National Marine Fisheries Service issued a rule saying the fishermen must bear the costs of the observers on their boats. 

Side note: This is a great storyline in the movie CODA, where a struggling family of Deaf fisherman have to pay $800/day for a federal “at-sea monitor” on their boat.

The Atlantic herring industry ain’t having this, and attorneys sued to get this fisheries rule thrown out.

When SCOTUS took up the case, the justices indicated strong disagreement with the Chevron Doctrine and deferring to federal agencies.

What Do Fish Have To Do With Trans* Kids? 

Congress passed Title IX in 1972, a statute that prohibits discrimination on the basis of “sex” in schools. But “sex” isn’t defined in the law. Does “sex” mean…

• Genitalia and reproductive parts? 

• Failure to conform to the expectations of your sex?

• Gender identity?

• Sex characteristics? 

• Chromosomal makeup?

Over the years, the U.S. Department of Education (a federal agency) has issued regulations saying what they interpret “sex” to mean.

In 2016, the U.S. Department of Education under President Obama issued guidance saying Title IX’s “prohibition [on sex discrimination] encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” 

So any court cases that asked “Does Title IX mean a transgender student should use the bathroom of their gender identity?” deferred to the Obama-era guidance under the Chevron Doctrine. Those courts determined yes, a transgender student should use the bathroom of their gender identity at school. See G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).

Then, federal administrations changed.

By 2017, the U.S. Department of Education was under President Trump, who rescinded that earlier Obama-era guidance about “sex” including gender identity.

So any court cases that asked the same question about bathrooms, applying the Chevron Doctrine, now could reach a different conclusion under President Trump’s administration. 

Then, the federal administration changed. Again.

This is why the Chevron Doctrine can get tricky. When courts defer to the U.S. Department of Education to interpret Title IX, and when Title IX guidance and regulations change with each president, schools can ping-pong without a clear answer. 

In eight years (2016-2024), the U.S. Department of Education will change Title IX’s interpretation of “sex” three times. Schools and LGBTQIA+ students are caught in a political ping-pong match.

In 2024, the U.S. Department of Education under President Biden will release revised Title IX regulations that will almost certainly declare Title IX applies to gender identity. (And, if a Republican president wins in November 2024, it’s likely those Title IX regulations will be changed back again.)

But will it even matter?

Will the Chevron Doctrine still stand?

Will courts defer to this Biden-era interpretation of Title IX, or instead use their own judicial interpretation for what Title IX means with respect to student gender identity — in bathrooms, locker rooms, athletics, pronouns, and more?

It is likely that, in the next 18-24 months, we will see Title IX’s gender identity protections be challenged in courts that no longer apply Chevron Deference to the U.S. Department of Education’s interpretation of Title IX.

What Should Schools Do Now? 

Schools in 17 states in the 4th, 7th, and 9th Circuits still have solid federal court rulings saying Title IX protects LGBTQIA+ students. 

More explicitly, schools in Illinois, Indiana, Wisconsin, Maryland, Virginia, West Virginia, North Carolina, and South Carolina have federal court rulings declaring that denying a transgender student the bathroom of their gender identity is a violation of Title IX. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915 (7th Cir. 2023); G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).

But schools in the Florida, Alabama, and Georgia have a solid federal court ruling saying the opposite. Adams v. Kasper v. School Board of St. Johns County, Tim Forson, et al., 57 F.4th 791 (11th Cir. 2022).

We thought this “circuit split” would cause SCOTUS to take up the issue of transgender kids in school bathrooms. But the court seems more inclined, at least for now, to side-step this particular cultural landmine and instead chip away at its underlying legal foundation.

We’ll find out o-fish-ially (eh?) when the final Loper decision is issued, likely in June 2024. 

But overturning the Chevron Doctrine will have immense effects on all federal regulatory schemes, not just Title IX and LGBTQIA+ students. 

All thanks to herring.

Yes, the fish.

Want to Know More?

Imprint Legal Group’s Jessica Heiser and Kacey Ramsey conduct Title IX and Gender Inclusive School trainings nationwide. In April 2024, they will present on Student Gender Rights at the National School Board Association's 2024 School Law Seminar, alongside renowned scholar Erwin Chemerinsky.

Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of January 2024.

The Crucial Step Workplace & School Investigations Miss

Consider a hypothetical:

A woman alleges that her boss has sexually harassed her. HR asks outside legal counsel to conduct an investigation. The attorneys interview the parties and witnesses, read emails and texts, and ultimately determine that yes, the evidence indicates the boss did sexually harass the woman under the terms of Title VII.

The attorneys give their recommendations and collect their money. The business forces the resignation of the Harasser Boss, usually including a non-disclosure agreement and promise not to sue the business in exchange for a hefty “walk away” sum.

Perhaps a joint statement is drawn up, in the spirit of Gwyneth Paltrow and Chris Martin’s “conscious uncoupling.”

Everyone returns to their regularly scheduled programming.

This is the pivotal moment - the fork in the road - when attorneys and human resources professionals miss a crucial step that can dictate the trajectory of the organization and of individuals’ careers.

Harassment and discrimination does not happen in a vacuum. It is almost always treated as an interpersonal problem between two people, but in reality, harassment and discrimination is also a reflection of a dysfunctioning system.

Because attorneys and HR professionals are trained to spot the legal issue in front of them, they almost always overlook - or patently ignore - the larger context and system in which the harassment occurred.

This is why the problem doesn’t go away with the removal of the Harassing Boss. That’s a good start, but it’s a start. Not the end.

Your work has just begun.

The Harassing Boss didn’t start sexually harassing his female Target yesterday. He’s likely been doing it for months or years, in a work environment that enabled him to exert his will or cross boundaries. Research shows that most harassers are habitual, and are usually on their fourth or fifth target by the time someone speaks up.

How does the Target’s career become rehabilitated after toiling for so long in a harassing environment? Even with the Harasser removed, it is likely that his “ghost” or presence will be felt by the team and the Target for years to come.

Even if the Harasser is removed from the workplace, the Target frequently expresses distrust for her remaining teammates, believing that they enabled, ignored, or covered up the harassment.

Further, the Target may experience reduced mental well-being and may now be considered a “boat rocker” or “troublemaker,” which further impedes career growth.

Rehabilitating the Target’s career, re-building trust amongst the team, and re-assessing the workplace culture that enabled this behavior (perhaps through revised procedures, training, or restorative circles) is tantamount to truly moving on.

We have seen this play out in our own workplaces and schools, and the clients we work for.

That’s why Imprint Legal Group brings together attorneys and experts in systemic racism, sexism, and ableism to conduct investigations that address both the interpersonal relationship and the system in which the relationship functioned.

Imprint Legal Group investigates complaints of discrimination or harassment based on protected class (race, sex, gender identity, sexual orientation, national origin, color, disability, veteran status) for businesses and schools. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of December 2023.

Imprint Founder Honored with Diversity in Law Award

Imprint Legal Group team members and supporters gathered on October 5, 2023, to celebrate Founder & Lead Project Attorney Jessica Heiser receiving the inaugural Diversity in Law Award.

L-R: Todd Shumaker, Kelleigh Irwin Fagan, J. Scott Byrnes, Jessica Heiser, Shelley Bethel, Emma Vosicky, and Kacey Ramsey gathered at the Indiana Roof Ballroom to celebrate the Diversity in Law Awards and discuss Drake, St. Elmo’s cocktail sauce, and the social evils of the elementary school car rider line.

Imprint Legal Group Founder & Lead Project Attorney Jessica Heiser

Indiana Lawyer and the Indianapolis Business Journal honored twenty three attorneys and judges from across the state and across practice types who have contributed to efforts to diversify the Hoosier legal profession.

Other honorees included two former Indiana Supreme Court justices, a Seventh Circuit Court justice, and partners from the largest law firms in Indiana.

Heiser was one of the youngest recipients of the award.

“When [Seventh Circuit Court Judge and fellow honoree] Doris Pryor told me at the awards ceremony that she admires what we’re doing at Imprint, I could have just died and gone to heaven right there,” Heiser said. “To have a judge of that caliber speak the name of our little firm means so much to me.”

Interviews of all honorees, including Heiser’s comment about law school that had the audience laughing, are available here.

Special Education Publication Features Imprint Founder

The leading resource for special education guidance, Special Ed Connection®, recently interviewed Imprint Legal Group for guidance regarding the complicated relationship between two federal civil rights laws:

Title IX of the Education Amendments of 1972 and

Section 504 of the Rehabilitation Act of 1973.

Because Imprint Legal Group focuses on how organizations can effectively and equitably comply with multiple civil rights laws, Imprint Legal Group Founder & Lead Project Attorney Jessica Heiser was uniquely situated to discuss the intersection between disability and sexual harassment in schools.

Heiser has practiced Title IX and special education law for eleven years.

Special Ed Connection® is relied upon by 2,500+ school districts and school attorneys for guidance on special education challenges.

Among other guidance, Heiser encouraged more critical thinking and coordination between federally-mandated coordinators in schools:

"If you have a Title IX coordinator or a Section 504 Coordinator who is trained to look at a much broader picture, you can start to have a more nuanced and intersectional approach to these complaints," [Heiser] said.

The full article is included below.

Heiser is an award-winning attorney and consultant available for trainings and media requests regarding federal civil rights laws for protected classes and diversity, equity, inclusion, and justice (DEIJ) issues.

Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your workplace or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com. 

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of October 2023.

Is Your DEI Program Inviting Lawsuits?

As attorneys and DEI experts, we’re getting a lot of questions about affirmative action, workplace DEI programs, and reverse discrimination lately.

While these are all distinct concepts, they’re commonly conflated by their critics, who argue that they are all socially accepted methods to harm historically favored Americans: chiefly, white people and men.

Reverse can mean “opposite.” It can also mean “move backwards.” When it comes to reverse discrimination, everyone has their own interpretation.

In theory, reverse discrimination makes a lot of sense: If our laws prohibit discrimination on the basis of race, then white people and melanin-rich people are all protected by those laws. Laws like Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of race, color, religion, sex and national origin) do not differentiate between historically privileged identities and historically excluded identities.

In practice, reverse discrimination has historically been a weapon of last resort for white people: for better or worse, complaints filed by white men have generally been regarded as childish or petty. That isn’t to say discrimination against white people doesn’t happen (it does) or that anyone should ever be shamed for advocating for themselves (they shouldn’t), but cultural expectations have kept these complaints from reaching a courtroom or Equal Employment Opportunity Commission (EEOC). The societal pressures made the legal system less of an option. 

But our societal winds are changing. Just ask your uncle at Thanksgiving what he thinks. (Disclaimer: Imprint Legal Group attorneys do not advise this. Nope.)

Let’s break down the top misconceptions around on these topics.

Myth: This is a uniquely American problem.

In the United States, we focus on race and sex more than any other excluded identity. Although our anti-discrimination laws also address disability, national origin, veteran status, age, pregnancy, etc., almost all reverse discrimination cases and affirmative action programs primarily target race and sex, including SOGI (sexual orientation and gender identity).

But at least eighteen countries, including the United States, have some form of affirmative action laws to promote historically disadvantaged identities in certain sectors.

For example, in Northern Ireland, employers have to monitor the religious composition of their workforce, along with annual reports and training, to ensure Catholics and Protestants are employed equally.

In Norway, affirmative action promotes men seeking jobs in traditionally “female” sectors like childcare, nursing, and early childhood education.

Myth: Reverse discrimination complaints are on the rise.

Reverse discrimination cases get a lot of media attention thanks to some jaw-dropping monetary awards. In June 2023, a jury awarded $25.6 million to a white Starbucks manager who was fired in the aftermath of high-profile arrests of two Black men at a Philadelphia location in 2018.

Despite all the recent media attention, the number of reverse discrimination complaints still pale in comparison (eh? pale?) to traditional discrimination cases.

EEOC’s most recent data from 2021 demonstrates a fairly steady rate of discrimination cases filed by white folks, even a slight decline over the last decade. Anecdotally, this aligns with Imprint Legal Group employment lawyers’ experience across several states.

In a similar fashion, after the 2016 election, school lawyers anticipated an uptick in male students filing Title IX claims, alleging reverse discrimination because of a pro-female, anti-male bias in sexual harassment cases. There was one notable case but the anticipated nationwide trend never came to fruition. Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016).

Myth: The Supreme Court’s affirmative action decision made workplace DEI programs illegal.

The widespread effects of Students for Fair Admissions, Inc. v. Harvard College (“SFFA”) are probably not as bad or as good as what shouting heads have made it seem. Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023).

In SFFA, the Supreme Court (“SCOTUS”) addressed a thorough admissions procedure utilized at Harvard and University of North Carolina, which considered race as one of the procedural steps. These procedures are almost never used outside of certain universities, and SCOTUS refused to address anything outside of those university’s admissions procedures (e.g., a university’s consideration of race in scholarships and financial aid). The court also explicitly green-lighted consideration of “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

It is highly unlikely that your private workplace engages in the specific type of affirmative action struck down by the Supreme Court.

But immediately after the SFFA ruling in July 2023, several Republican Attorneys General and conservative legal activists used the ruling to encourage the elimination of corporate DEI programs or any program that uses race as a factor, such as scholarships, investor funding, supplier diversity programs, etc.

Bolstered by widespread attention, the conservative legal activists behind SFFA set their next sights on a venture capital firm that backs start-ups led by Black women and two corporate law firm fellowship programs aimed at bolstering diversity in the legal profession. The activists are using entirely different legal arguments from SFFA in these cases, a point which has been misunderstood or (ahem) whitewashed in the media coverage.

Fellow law nerds, take note: Conservative activists are using several different legal approaches, in addition to applicable state laws:

• Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment (used in SFFA)

• Title VII of the Civil Rights Act of 1964 (used in the vast majority of reverse discrimination employment actions brought by plaintiffs). In May 2023, SCOTUS refused to consider a Title VII case involving reverse discrimination wherein two white male police officers claimed they were fired for challenging the police department’s diversity initiative to increase hires of women and people of color.

• Breach of fiduciary duty (used by a Starbucks shareholder to challenge Starbucks’ diversity policies; that case was dismissed in August 2023 as frivolous)

• Section 1981 of the Civil Rights Act of 1866 (yes, 1866) which prohibits intentional discrimination on the basis of race, color, and ethnicity when making and enforcing contracts (used in the latest challenges regarding contracts designated for historically excluded identities)

To our knowledge, none of these cases has considered conflicting laws that sanction affirmative action, such as 1970s regulations that mandate companies who contract with the federal government have affirmative action policies. 41 C.F.R. 60.

Don’t get it twisted: There are multiple legal standards at play when considering race in our workplaces and schools, and each standard comes with a separate analysis. It would be a mistake to hear about one case and think it applies to your organization.

Those organizational leaders who are now abandoning their once-promoted “mission” of increasing diversity were likely always going to abandon it; the Supreme Court’s decision in SFFA v. Harvard and recent media attention simply provides those leaders the overly-simplistic cover of “risk management” to ditch what they wanted to ditch anyway.

What should organizations do?

1. DON’T stop working towards sensible DEI goals. DEI means building systems in which each person can thrive in their own way without barriers. Instead of using quotas or hiring preferences based on race (which aim for cosmetic diversity and have sketchy results at best) or benefits that exclude someone based on race (“no white people allowed at the Black employee happy hour”), focus instead on building inclusive culture and breaking down barriers for historically excluded groups.

   Integrated, evidence-backed, well-funded DEI work is harder than “By 2035, we’ll hire 30% more people of color,” but it’s more effective and legally sound. If you’re not sure where to start, our DEI lawyers are happy to chat.

2. DO document the rationale behind hiring, promoting, and firing employees to demonstrate their identity was not a determinant factor. Leaders should write down what information was considered, how information was weighed, and what disagreements may have influenced the ultimate decision.

   The most likely time an organization will face a reverse discrimination lawsuit is when someone is fired. If you’re going to fire a white employee for appearing at a Unite the Right Rally, have you ever fired a similarly situated Black employee for advocating violence towards Mexicans? Ensure someone’s race is not a determinant factor in your decision-making and how you can prove that.

3. DO take care of your employees of color. A Black woman is promoted instead of a white man, who then files a reverse discrimination complaint. The workplace leaders naturally shift their immediate focus to defending the complaint, knee-deep in attorneys and legal discovery … and in the background stands a newly-promoted employee of color, who did nothing wrong, but now feels like a burden. It is essential for organizational leaders to support the newly-promoted employee with simple, repeated messaging: “We want you here. You earned this position. What do you need from us?”

Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your workplace or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com. 

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of September 2023.

Imprint Founder Speaks Out on Pronoun Law

Imprint Legal Group Founder and Title IX expert Jessica Heiser was quoted in several national news outlets this month regarding Indiana’s new “Pronoun Law.”

Heiser was the only attorney to go on the record discussing the burden HB 1608 places on educators, who have enough on their plates already.

Under the new I.C. 20-33-7.5, schools are obligated to notify a parent when a student requests a change to their name, pronoun, or title, but important words like “request,” “change,” and “name” are not legally defined, leading to massive confusion and administrative burden. The “Pronoun Law” may also conflict with schools’ obligations under Title IX and the requirement to keep students free from abuse.

“School administrators and educators want to work hand-in-hand with parents and caregivers. We all know children do best when school and home life are aligned. But this law . . . doesn’t achieve the goal of working together,” Heiser said.

The story was picked up by multiple national outlets as Indiana’s students and educators went back to school in August 2023.

Jessica Heiser is the Founder & Lead Project Attorney of Imprint Legal Group, a boutique law and consulting firm focused on protected class law for organizations. She has trained thousands of educators on laws and culture regarding LGBTQIA+ issues.

Imprint Legal Group partners with schools and organizations to create inclusive spaces while complying with state and federal laws. To provide training for your school or parent group or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of August 2023.

Trans* Kids in Midwestern K-12 Schools: A “Cheat Sheet” for the 2023-24 school year

As schools across the Midwest start the 2023-24 school year, Imprint Legal Group’s attorneys and consultants have been closely studying national and local legal changes that affect transgender and non-binary students in K-12 schools in Illinois, Indiana, and Wisconsin. As experts in legal compliance and inclusive cultures, we bring you the latest highlights out of the Seventh Circuit, U.S. Department of Education Office for Civil Rights, and Indiana legislature:

Bathroom and Locker Room Use

What’s the deal?

On August 1, 2023, the Seventh Circuit Court of Appeals (which governs Illinois, Indiana, and Wisconsin) upheld two lower court rulings regarding two Indiana K-12 schools to allow transgender students access to bathrooms and locker rooms consistent with their gender. The Seventh Circuit's court order in A.C. v. MSD of Martinsville and B.E. v. Vigo County School Corporation stated its 2017 decision in Whitaker v. Kenosha Unified School District still stands.

On December 30, 2022, the Eleventh Circuit Court of Appeals (which governs Florida, Alabama, and Georgia) held differently in Adams ex rel. Kasper v. School Board of St. Johns County.

Because there is a “circuit split” nationwide, it is likely that the U.S. Supreme Court will take up this issue in the future.

What do schools need to do?

In Illinois, Indiana, and Wisconsin K-12 schools, prohibiting a transgender student from using the bathroom or locker room of their gender identity is a violation of Title IX and the Equal Protection Clause. Demanding transgender students use a gender-neutral bathroom is a risky choice and should take careful consideration of the specific facts of each student’s request in each school building. Pages 18-22 of the Seventh Circuit's order are particularly helpful for schools, especially when considering the well-established gender identity of the plaintiffs in these cases.

Teacher’s Religious Accommodations vs. Transgender Student’s Affirmed Name and Pronouns

What’s the deal?

On June 29, 2023, the U.S. Supreme Court issued an order in Groff v. Dejoy, which unanimously held that an employer must show that it would create a “substantial” burden for its business in order to decline a religious employee’s request for an accommodation from a work rule that conflicts with their faith. This SCOTUS ruling clarified the test that nationwide employers must apply under Title VII of the Civil Rights Act of 1964.

A few weeks prior to the Gross v. Dejoy ruling, on April 7, 2023, the Seventh Circuit Court of Appeals (which governs Illinois, Indiana, and Wisconsin) upheld a lower court’s ruling that a K-12 Indiana school was correct in not accommodating a teacher’s requested religious accommodations to not use a transgender student’s affirmed name. That case, Kluge v. Brownsburg Community School Corporation, determined that a Christian orchestra teacher was correctly terminated from his job when he refused to follow a school rule and use a transgender student’s affirmed name. 

After three judges on the Seventh Circuit upheld that lower court’s decision in April, the teacher requested a “second look” from the entire bank of judges on the Seventh Circuit. 

On July 28, 2023, the Seventh Circuit determined that the Kluge v. Brownsburg case needed to be sent back to the lower court for that judge to re-examine the evidence under the new Gross v. Dejoy test first. 

What do schools need to do?

Schools should develop clear procedures on when a school employee will be required to use a transgender student’s affirmed or preferred name or pronouns. For example, does a student have to be a certain age, have parental approval, have been presenting as transgender for a certain amount of time, etc.? 

Then, if a school employee refuses to follow a school’s rule to use a student’s affirmed name or pronouns, school administrators should contact their attorney immediately. The interactive process between the employee’s rights under Title VII and the transgender student’s Title IX and Fourteenth Amendment rights is a complex, fact-specific determination with no simple “right or wrong” answer.

Changes to Title IX Regulations 

What’s the deal?

Originally anticipated in May 2023, President Biden’s administration is now expected to release final revised regulations in October 2023. Schools will likely be given several months to implement the revised regulations. We will likely see changes to the Title IX grievance procedures, protections for LGBTQIA+ students, and students’ eligibility for athletic teams.

What do schools need to do?

Set aside time and money for training and policy changes in the 2023-24 school year. At a minimum, your district’s Title IX Coordinator, along with HR- and student-focused district administrators should plan on new training.

Indiana Code 20-30-17: Prohibited Instruction

What’s the deal?

Part of HB 1608, I.C. 20-30-17 is colloquially known as Indiana’s “Don’t Say Gay” law and went into effect on July 1, 2023. We unpacked the law in depth here. The ACLU of Indiana filed a lawsuit to challenge the law, and the preliminary injunction was denied on July 28, 2023. Therefore, the law is in effect currently. The ACLU has not announced if it will continue pursuing the lawsuit.

What do schools need to do?

Engage in training, with role playing and case studies, for teachers of preK-3rd grade students. Teachers must be sensitive around lessons and instruction even tangentially related to “human sexuality” (which is not defined anywhere), but also to not be so paranoid of this law that they create unsafe spaces for young children and their families. Emphasize that teachers are permitted to answer students’ questions about human sexuality.

Indiana Code 20-33-7.5: Parental Notification Regarding Identification

What’s the deal?

Part of HB 1608, I.C. 20-33-7.5 requires a school to inform parents in writing within five business days of a K-12 student requesting a change to their name, pronouns, title, or word to identify. This law went into effect on July 1, 2023. We unpacked the law in depth here.

What do schools need to do?

Implement a standardized procedure and form for name, title, or pronoun changes. Parents must be notified of this request, but parents need not approve or consent for the school to use the student’s affirmed name or pronoun.

Determine which school employees will be responsible for implementation of these procedures (guidance counselors, classroom teachers, principal, district-level administrators?) Train teachers and employees on what to do when a student requests a change.

Indiana Code 20-33-13-4: Transgender Girls in Sports

What’s the deal?

On July 1, 2022, I.C. 20-33-13-4 went into effect and barred transgender girls from participating in K-12 female sports. A lawsuit was filed and the federal district court struck down the state law as applied to a transgender girl in Indianapolis Public Schools, but the scope of the order only applied to this specific student. The Attorney General of Indiana appealed that decision, but it was eventually dismissed in January 2023 as moot because the particular student moved to a different school. This case is a “warning shot” to other Indiana school districts that forbidding a transgender girl from participating in K-12 female sports will likely wind up in a lawsuit.

On April 6, 2023, the U.S. Supreme Court opted not to hear a different case that would have taken up this issue (West Virginia, et. al., v. B.P.J. bnf Heather Jackson), although they hinted that they might look at it in the future.

What do schools need to do?

There are very, very few students this issue applies to, so it’s highly unlikely that a school needs a written policy or procedure.

If a transgender girl desires to play sports on a female-only team, consult with the school’s general counsel on the fact-specific scenario. It is likely that a school will find itself stuck between a rock and a hard place (or to put it legally, stuck between state law I.C. 20-33-13-4 and federal caselaw Bostock and Whitaker).

Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your school or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of 8/4/23 and is likely to change.

Indiana’s “Don’t Say Gay” HB 1608 (Pt. 2): The Good, the Bad, and the Ugly

Spoiler alert: There’s no good here. Just bad and ugly.

Indiana’s HB 1608 becomes effective July 1, 2023 for all public schools. The bill creates two new statutes:

1. Teaching human sexuality (creating a new statute: I.C. 20-30-17)

2. Outing students with changed names, pronouns, or titles (creating a new statute: I.C. 20-33-7.5)

Imprint Legal Group dissected the first part in an earlier post regarding “human sexuality” instruction for little kids.

Let’s break down the second statute, which is far more concerning and confusing:

Students with Changed Names and Pronouns (I.C. 20-33-7.5)

What the law says:

School staff must notify at least one parent when a student (of any age*) requests a change to:

• Name

• Pronoun, title, or word to identity the student

*There has been some confusion about this requirement because HB 1608’s first part only applied to teaching human sexuality to preK-3rd grade. HB 1608’s second part - these name/pronoun changes - apply to all grades.

The school must notify the parent in writing within 5 business days of the student’s request. (Business days are different from school days, folks. Business days are typically Monday-Friday, not days when school is in session. So if a kid makes a request on Friday before your school’s two-week winter break, a school has until Friday of the following week to notify a parent, even if everyone’s in a cheese-induced couch coma in that week between Christmas and New Years.)

The legislators also made two other telling changes:

• Explicitly stated that licensed school counselors and school psychologists, who are usually prohibited from disclosing privileged and confidential information that a student would tell them, are mandated to follow the new “outing” law (revising I.C. 20-28-10-17 and I.C. 20-28-12-5)

• Reminded everyone of their duty to report child abuse or neglect under I.C. 31-33-5.

Questions unaddressed by this law:

1. What’s a “change”?

Schools are supposed to notify a parent when there is a “change” in name, pronoun, title, or word to identify a student. But what’s a change? Remember, this law applies to all students, not just those who wish to change from a traditionally masculine name to a traditionally feminine name or visa versa.

My birth certificate says Jessica, but for years I asked my teacher on the first day of the school year to call me Jessie and, in my later sophisticated and mature high school years, Jess (I had to wait for “Jess” until a much cooler girl named Jess moved away and the nickname was up for grabs again). Anyone who calls me “Jessie” today knew me from a very specific time of my life; they wouldn’t dream of calling me “Jessica.”

Would my teacher need to notify my parent that I asked to be called “Jessie” instead of “Jessica”? After all, “Jessie” is a technical change from “Jessica.” Or what about these other “first day of school requested changes” that happen all the time, like:

• What if a student wants to go by a middle name?

• What if a student wants to go by a nickname? (ex: Richard to Dick)

• What if a student wants to go by a shortened form of their name? (ex: Ashley to Ash or Samantha to Sam)

• What if a student wants to go by their original and additional pronouns? (ex: he/him to they/him)

Under the law, all of these changes might require parental notification. Each school district needs to determine prior to the start of the 2023-24 school year how it will define a “change” to names and pronouns. Some districts will over-enforce the law and notify parents of every tiny change in names (like Jessica to Jess). But if the school only enforces this law when transgender or non-binary students request a name or pronoun change, it is highly likely to violate Title IX, which prohibits differential treatment on the basis of gender.

2. What’s a “request”?

The law does not address if the student’s request needs to be in writing or verbal. The law does not address if a “request” is for changes in school records (i.e., “I want the name on my transcript and all paperwork to be different”) or everyday verbal communication (“i.e., “I want my teacher and friends to call me River.”)

What if a student only wants a changed name and pronouns in one class, but not another? Kids will tell you which teachers they feel more comfortable with and it is common for students to act differently with different teachers depending on how safe and affirmed they feel in that particular adult’s presence. So what if the student only wants a different name in performing arts class? What if they only want to be called a different name while playing basketball? Are all of these “requests” which require parental notification?

3. If a student requests a change, but they don’t understand the consequences, can the school inform them of next steps and ensure they want to make this change?

The law does not prohibit some ‘informed consent’ conversation with the student and double-checking the student’s request before proceeding (or as Regis Philbin would put it: “Is that your final answer?”) Many children, especially younger kids and especially with a new law, will not understand the ramifications of asking their teacher to be called a different name in class. There is nothing legal that would prohibit a short “Are you sure you want to be called Zoe, honey? Because if you do, I am required by law to notify your mom. I just want to double check before we go down that road.”

4. What if one parent is affirming but another parent isn’t?

Personally, I’ve never disagreed with my spouse about anything related to raising our children, so this is difficult to relate to.

Of course, it’s very common for two parents or caregivers to have different opinions if their child wants to change their name or pronouns. The law only requires one parent be notified. If parents or caregivers are divorced or separated, it stands to reason that the school is going to pick the parent who has the most interaction with the school and/or who will be the most affirming of their child. The differences between disagreeing parents are the purview of marriage counselors and family court, not school teachers.

5. What if the parent isn’t okay with the student’s requested change?

The law requires written parental notification, but doesn’t address anything that comes after that. Parental consent or affirmation is not legally required for a school to honor a student’s requested change. A school’s response to a non-affirming parent should align with their normal procedures under Title IX and gender support plans in the school district. Remember, the procedures for cisgender and transgender students must be identical, according to the U.S. Department of Education, Office for Civil Rights (OCR)’s interpretation of Title IX.

6. What if the school believes notifying the parent will result in the child being subject to abuse, mental distress, or being kicked out of their home?

The legislators tacitly acknowledged that parental notification (or, to put it more bluntly, forced outing) can result in grave consequences for LGBTQIA+ children, who statistically face increased rates of suicide and unhousing when faced with disaffirming families.

What happens when the school already knows the child has mental health concerns, including suicidal ideations, and alerting their parent could put the child in danger?

Legislators imply that a parental notification may need coupled with a call to the Department of Child Services, by putting these provisions in the law right next to each other, but schools should take extreme caution around this topic. Administrators need to juggle parental rights, mental health support, special education support, and coordination with law enforcement, DCS, and their general counsel when they know that following this state law will inevitably harm the child and, to a lesser concern, increase the district’s liability.

Note 6/9/23: ACLU filed a suit to challenge the first part of HB 1608 (I.C. 20-30-17-2), but the lawsuit does not address this portion of HB 1608 (I.C. 20-33-7.5). This “forced outing” or “parental notification” statute is not currently challenged in court.

Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your school or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice.

Indiana’s “Don’t Say Gay” HB 1608: Let’s Talk About Sex, Baby

If Indiana really wanted to follow in Florida’s footsteps, a northern outpost of Walt Disney World or LEGOLAND would be a great place to start. We would be delighted to bring a Wizarding World of Harry Potter to Hoosiers.

Adopting a watered-down version of Florida’s "Don’t Say Gay” legislation was not the route we would have suggested.

But Indiana’s HB 1608 has passed and becomes effective July 1, 2023. This bill prompts more questions than answers, and leaves Indiana schools scrambling before the 2023-24 school year.

We’re here to help.

Legislative bills create or revise existing laws on the books. In this case, HB 1608 creates two brand new statutes:

1. Instruction on human sexuality (creating a new statute: I.C. 20-30-17)

2. Outing students with changed names, pronouns, or titles (creating a new statute: I.C. 20-33-7.5)

These statutes do not apply to private schools; only public schools (including charters), laboratory schools, Indiana School for the Blind and Visually Impaired, and Indiana School for the Deaf.

As Maria von Trapp sang, Let’s start at the very beginning… a very good place to start. We’ll break down the first part of this bill here:

Instruction on Human Sexuality (I.C. 20-30-17)

The Law Says:

Schools may not provide “any instruction to a student in prekindergarten through grade 3 on human sexuality.” However, school employees can respond to a question from a student regarding “human sexuality.”

Teachers can still provide instruction on “academic standards” and “instruction required” by Indiana Department of Education.

Unanswered Questions:

1. What is “human sexuality?”

   Putting aside the fact that there are centuries of study dedicated to this complex issue, the Indiana legislature has not defined the term “human sexuality.” The phrase is only mentioned two other times in Indiana law: I.C. 20-30-5-13, which states that when schools teach “human sexuality or sexually transmitted diseases,” they must encourage abstinence outside of wedlock, and I.C. 20-30-5-17, which allows parents to review all instructional materials related to human sexuality and to opt their child out of that instruction.

   Nothing in any of these laws mention sexual orientation, gender identity, human anatomy, or bodily autonomy (although those are all very distinct and separate topics, but lawmakers commonly lump them together). Compare that to Florida, which explicitly prohibits instruction on “sexual orientation and gender identity.” Earlier versions of HB 1608, which were eventually amended, would have prohibited “studying, exploring, or informing students about gender fluidity, gender roles, gender stereotypes, gender identity, gender expression, or sexual orientation” — that was all abandoned in the final bill.

   Therefore, to the extent first grade teachers are teaching six-year-olds that the best way to avoid chlamydia is to establish a “mutually faithful” marriage, teachers need to stop that instruction after July 1st.

   (Spoiler alert: No. Teacher. Has. Ever. Done. This.)

   While this law can undoubtedly have a chilling effect on scared teachers discussing anything related to LGBTQIA+ topics in their classrooms, it doesn’t need to. The law does not mention gender identity or sexual orientation at all. In reality, I.C. 20-30-17 prohibits instruction about human sexuality in preK-3rd grade, which to the best of our guess means sexual intercourse and sexually transmitted diseases.

2. Does this law mean teachers can’t use materials that feature LGBTQIA+ individuals or themes?

   There will be a lot of PreK-3rd grade teachers carefully looking at their materials for the 2023-24 school year. Many of us at Imprint Legal Group led classrooms and would testify that educators desperately want each child in their care to feel safe and seen, and want to stay out of controversial school board meetings.

   While community controversy is different than legal compliance, there is nothing explicit in this law that would prohibit, for example:

   • a teacher having photos of their same-sex partner or their trans* child in their classroom

   • using inclusive materials to provide instruction on academic standards, like a teacher using And Tango Makes Three or Stella Brings the Family to instruct children on examples of how to be a responsible family member and member of a group, which is an Indiana state standard required to be taught in kindergarten

   • instruction on lessons like “boys can wear dresses and girls can wear pants and good citizens show respect to everyone in our community regardless of their outfit,” as Indiana state standards require instruction on “getting along with others and becoming a good citizen” for young children

3. Doesn’t this law violate Title IX and other federal protections based on sex, gender, and sexual orientation?

   It may. The Florida “don’t say gay” statute is currently being litigated in court, as are similar state laws. The new statute attempts to be facially neutral (i.e., by prohibiting “human sexuality” instruction instead of “gender identity discussions,” it doesn’t explicitly target LGBTQIA+ people on its face), but Title IX of the Educational Amendments of 1972, Title VII of the Civil Rights Act of 1964, and the 14th Amendment can be violated if a school only applies the law against LGBTQIA+ students or teachers. Schools must be consistent in its enforcement amongst all individuals. For example, a principal requiring a gay teacher to submit all books used in the classroom for advance approval but not “policing” a straight teacher’s selected books is likely a violation of Title IX and Title VII.

4. How is this law enforced?

   Unlike Florida’s law, which allows parents to bring a civil lawsuit against the school district or ask for a specially appointed magistrate to have a mini-hearing, Indiana’s law has no explicit enforcement mechanism.

   We’ve heard some legal experts express concern that certain unnamed politicians who get high on media coverage could threaten to revoke someone’s teaching license for performing some vague action that the politician believes falls under “human sexuality instruction.” (A teacher’s license can be revoked for immorality, misconduct in office, incompetency, or willful neglect of duty under I.C. 20-28-5-7.)

   In reality, it would be incredibly difficult to prove a teacher was engaged in instruction on human sexuality in preK-3rd grade which qualified for the legal revocation of their teaching license, but that would not stop a media circus nonetheless. Public pressure and the threat of media attention is, right now, the de facto enforcement mechanism for this law.

5. What’s the future look like with this law?

   This law was created to “solve” a problem that doesn’t exist (How many second grade teachers are instructing kids about sexual abstinence outside of wedlock? None.) and includes no explicit penalties for violating it.

   The ACLU says this law “effectively ban[s] discussion or acknowledgement of LGBTQ people in schools.” We’re not sure we’d go that far, but we do believe this law will have a dramatically chilling effect on teachers and families who are scared of persecution or angry community members.

Our next blog post will dissect the second statute created by HB 1608: Parental notification for name or pronoun changes.

Update 6/9/23: ACLU has filed a complaint to challenge HB 1608. ACLU has asked the federal court to declare that Indiana Code § 20-30-17-2 (effective July 1, 2023) is unconstitutional (violating the 1st and 14th Amendments) and for a preliminary injunction (aka “a stop button”). We’ll keep you updated on the case’s progress.

Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your school or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice.