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.
