The Kiel Area School District in Wisconsin filed a Title IX complaint against three eighth-grade boys, who are now being investigated for sexual harassment merely because they used “incorrect” pronouns in addressing a transgender student in their class (pronouns matching the student’s biological sex, rather than using the student’s preferred pronoun, “they/them”).
“I received a phone call from the principal over at the elementary school, forewarning me; letting me know that I was going to be receiving an email with sexual harassment allegations against my son,” Rosemary Rabidoux, a parent of one of the children being accused, said to Fox 11.
“I immediately went into shock! I’m thinking, sexual harassment? That’s rape, that’s inappropriate touching, that’s incest,” Rabidoux added. “What has my son done?”
When Rabidoux learned exactly what her son Braden was being accused of, she was shocked for a different reason. The principal “said he’s being allegedly charged with sexual harassment for not using proper pronouns,” said Rabidoux. “I thought it wasn’t real! I thought this has got to be a gag, a joke — one has nothing to do with the other.” The Wisconsin Institute for Law & Liberty (WILL) is representing the parents.
Attorneys at WILL sent a letter to administrators at the Kiel Area School District urging the district to drop the Title IX complaint and investigation. WILL’s letter argues that the mere use of biologically correct pronouns not only does not constitute sexual harassment under Title IX or the District’s own policy, it is speech protected by the First Amendment.
WILL Deputy Counsel, Luke Berg said, “School administrators can’t force minor students to comply with their preferred mode of speaking. And they certainly shouldn’t be slapping eighth graders with Title IX investigations for what amounts to protected speech. This is a terrible precedent to set, with enormous ramifications.”
Three eighth graders were notified of a Title IX complaint and investigation for sexual harassment for using a biologically correct pronoun when referring to a classmate, instead of the student’s preferred pronoun of “they/them.” The school system’s position appears to be that once a student informs others of alternative, preferred pronouns, any subsequent “mispronouning” automatically constitutes punishable sexual harassment under Title IX, even if the “mispronouning” is not a persistent pattern or practice.
As the Wisconsin Institute for Law & Liberty explains:
Sexual harassment, as defined in both Title IX and the Kiel Area School District’s policy, typically covers things like rape, sexual assault, dating violence, stalking, inappropriate touching, and quid pro quo sexual favors. None of that—or anything even close to it—is alleged in the complaint. While there is a catchall for “unwelcome conduct” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education,” the mere use of a biologically correct pronoun, without significantly more, does not count, and if it did, it would violate the First Amendment. Schools of course can and should deal with teasing and bullying, but using so-called “incorrect pronouns” alone is not punishable, without more.
Further, the District has also failed to follow Title IX procedures and its own process. Both the District’s policy and Title IX regulations require notice of the allegations before beginning any investigation so that the accused has “sufficient time to prepare a response before any initial interview.” The District failed to provide a detailed notice of the allegations, instead providing only a generic letter, one day before the District sought to question the minor students, stating that the boys were accused of “using incorrect pronouns.” The District initiated its investigation and conducted interviews without first providing additional details or giving the boys and their families time to prepare.
The conservative Sixth Circuit Court of Appeals ruled that a professor’s persistent practice of not using a transgender student’s preferred pronoun did not violate Title IX, and was speech protected by the First Amendment, in Meriwether v. Hartop (2021).
More liberal judges might disagree about whether Title IX can be violated by a persistent pattern or practice of not using a transgender student’s preferred pronouns. But occasional instances of not using preferred pronouns does not amount to sexual harassment, even according to most liberal judges. For example a judge in Maryland ruled that there was no sexual harassment, despite occasional use of incorrect pronouns by colleagues, and one “comment” expressing “hatred of transgender people”; “That single comment …. while unquestionably rude, does not …. ‘satisfy the severe or pervasive test'” for constituting sexual harassment, the judge ruled. See Milo v. CyberCore Techs., LLC, No. SAG–18–3145, 2020 U.S. Dist. LEXIS 5355, at *10–11 (D. Md. Jan. 13, 2020).
Moreover, in Wisconsin, Title IX only requires schools to take action against conduct that is severe and pervasive enough to constitute illegal sexual harassment. It does not require them to punish behavior that is not severe or pervasive, even if that would nip such behavior in the bud. That’s what the Seventh Circuit Court of Appeals, which has jurisdiction over Wisconsin, has ruled. See C.S. v. Madison Metropolitan School District, 7th Cir. May 10, 2022 (en banc).
So even if a pervasive failure to use transgender pronouns could potentially violate Title IX, these 8th graders’ behavior does not.
Moreover, since the transgender student is not plural, but a single person, it is not clear why the transgender student should be entitled to demand that others refer to him/her as “they/them.” That seems like preferential treatment. Civil rights laws like Title IX and Title VII don’t give minorities a right to preferential treatment. (See, e.g.,Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (Title VII does not mandate affirmative action or override state bans on affirmative action based on race or sex); Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1519 (N.D. Cal. 1996) (Title IX did not preempt state ban on gender-based affirmative action), rev’d in part on other grounds, 122 F.3d 692 (9th Cir. 1997)).
