By Jennifer George
Recently, a Wisconsin middle school opened a Title IX investigation into three 8th-grade students. If only that were a sad joke.
The boys, who as 8th graders would be approximately 13 years old, are accused of unlawful sexual harassment because they allegedly failed to use preferred pronouns in reference to a classmate who asked to be identified as “they” or “them.”
Public schools — elementary through higher education — now push gender ideology conformity, suppress free speech, and ignore biology and science, not to mention grammatically correct language, all to celebrate dysphoric feelings.
Wisconsin’s Kiel Area School District apparently and erroneously believes that Title IX, a federal law that prohibits sex discrimination in education, requires them to take action against the accused pronoun perpetrators. This is, quite simply, an incorrect reading of the statute.
Title IX succinctly states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
A mere 37 words, intended to compel schools to provide equal opportunities to male and female students, are now being exploited to punish 8th grade boys who call a female student “her” or “she.”
School districts, like the one in Wisconsin, are taking their lead from President Biden, who has promised to vastly expand the scope of Title IX by redefining “sex” to include “gender identity.”
The proposal is no small change. Federal sexual harassment law, developed over 70 years of jurisprudence, is based on the notion that discrimination occurs when a member of one sex (but not the other) is treated in an inappropriate manner.
Developed first in the Title VII employment law context, and later imported to the educational context via Title IX, sexual harassment is unlawful only when it rises to the level of discriminatory conduct. Employers and schools are not, therefore, held liable for each and every inappropriate joke or slur made by employees or students.
They can, however, be held liable when their own actions or policies create an environment in which employees or students are subjected to sex-based conduct that is “so severe, pervasive, and objectively offensive as to deny the target of the conduct equal access to employment or education.” This legal standard is necessarily a high bar, balancing the interests of free speech against freedom from unlawful sexual harassment.
Universities often attempt to prohibit speech below this threshold for unlawful harassment, despite broad constitutional protections for even offensive speech. Courts routinely find these policies inconsistent with the legal standard of sexual harassment and often blatantly unconstitutional. See McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010); DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008).
But never mind the legal standard. If President Biden says that misgendering someone is the civil rights issue of our time, federal law must apply!
Someone might want to remind the administrators at the Kiel Area School District that the First Amendment protects our right to disagree and even to offend. It also protects our right not to remain silent and not to speak as government authorities may like, particularly on a hotly contested matter of public concern.
The lawyers for the accused 8th grade boys in Wisconsin are correct that the law is on their side. But after President Biden’s Department of Education finally issues its proposed Title IX regulations, schools may be compelled to police pronoun usage.
Every indication exists that these unelected bureaucrats will attempt to change the law by regulatory fiat, erode free speech rights, and use the taxpayer-funded educational system to implement their woke social agenda. No joke.
Jennifer George is a visiting legal fellow at Independent Women’s Forum (IWF.org).