Pronouns and Title IXBy Malina Piontek, AWSA Retained Attorney and Joe Donovan, Founding Partner, Donovan Group Over the last several months, AWSA members have asked questions regarding how to address the issue of students’ preferred pronouns. While the issue of preferred pronouns is contextual and situation-specific, we wanted to provide some legal information on the matter to assist you. It is important to note that we are writing this article in late September 2022. Guidance may change by the time you read this article. As we seek to wrap our arms around this issue, it is important to note that while some school boards have adopted policies to govern their district’s treatment of pronouns, no state or federal law currently exists regarding the use of students’ preferred names and pronouns at school. While there are no state or federal laws specifically related to pronouns, there are several laws that are indirectly related, such as the 14th Amendment and the Family Educational Rights and Privacy Act (FERPA), which speak to student privacy and confidentiality. However, for this article, we will focus on Title IX. Title IX is the most commonly used name for the federal civil rights law enacted in the United States as part of the Education Amendments of 1972. This law prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. In short, Title IX 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.” Title IX protects students, employees, applicants for admission and employment, and other persons from all forms of sex discrimination, including discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. The U.S. Department of Education Office for Civil Rights (OCR) issued a notice on June 16th, 2021 that explained that it would enforce Title IX’s prohibition of discrimination on the basis of sex to include discrimination based on (1) sexual orientation and (2) gender identity. In June, 2021, the OCR also published its Supporting Transgender Youth in School (June 2021) resource, which suggested that schools:
Moreover, OCR has stated that it will investigate allegations of individuals being harassed or subjected to sex stereotyping at school or otherwise treated differently due to their sexual orientation or gender identity. So, what is the takeaway? Again, while no state or federal laws specifically address pronouns, the theme with these legal issues is to point out the risks to districts that don’t allow students to use their preferred names and pronouns. The Title IX complaint process is complicated. However, as we have seen in Wisconsin already, a student can file a Title IX complaint stating that people who refuse to use their preferred name and pronoun are discriminating against them based on their gender identity. We will watch this subject evolve over the coming months and provide updates accordingly. |