Schools and universities have struggled over the last several years with the question of whether students have a protected right to use gender-based pronouns with which they identify, but which differ from the pronouns associated with their birth gender.  A subsequent, and sometimes more difficult question, is assuming that students do, can schools require teachers and other employees to refer to students by those gender-identity pronouns, particularly when the employee claims that acknowledging a student’s “change” in gender conflicts with the employee’s religious beliefs?  Can a school fire a teacher who insists on using the old pronouns?

These disputes are highly fact-specific, and will require a case-by-case-analysis, so we strongly suggest involving your local school attorney when they arise.  However, two recent cases which resulted in very different outcomes will be of interest to those considering such a situation.  In Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021), Meriwether, a philosophy professor at Shawnee State University, was disciplined after refusing to use students’ preferred pronouns. Shawnee State University claimed that he had created a hostile environment for his students under Title IX.  Meriwether argued that his use of the Socratic method of instruction in classes such as Political Philosophy required him to address students as “Mr.” or “Ms.”, to maintain a certain level of formality.  He also claimed that his religious beliefs prevented him from “affirm[ing] as true ideas and concepts that are not true,” and that as a devout Christian, he believed that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed….”

The Court of Appeals sided with Professor Meriwether and ruled that the University had violated his First Amendment free speech and free exercise rights.  The Court, very much viewing the case though a higher education “academic freedom” lens, found that cases such as Garcetti v. Ceballos, 547 U.S. 410 (2006), did not bar the free speech claim, and that at least at the Rule 12(b)(6) stage, the Court could not find as a matter of law that Meriwether’s speech disrupted the operations of the university under Pickering v. Board of Education, 391 U.S. 563 (1968).  The Court rejected the University’s Title IX defense, ruling that “Meriwether’s decision not to refer to Doe using feminine pronouns did not have [the systemic effect of denying the victim equal access to an educational program activity],” and that “Shawnee State’s purported interest in complying with Title IX is not implicated by Meriwether’s decision to refer to Doe by name rather than Doe’s preferred pronouns.”

In contrast, in Kluge v. Brownsburg Comm. Sch. Corp., 548 F.Supp.3d 814 (S.D. Ind. 2021), an Indiana orchestra teacher alleged that he was forced to resign after refusing to use students’ preferred pronouns.  Kluge’s dispute with the school was long-running, and although the school initially “accommodated” Kluge by letting him use last names only, they determined after a year that that was not working, since students continued to complain.  Unlike  in Meriwether, however, the Court sided with the school and ruled that requiring Kluge to use preferred pronouns did not discriminate against him on religious grounds under Title VII, because using last names only created an undue hardship for the school district by interfering with the school’s ability to educate all of its students in a safe and supporting environment.  The Court also acknowledged the school’s significant potential liability if a student filed a lawsuit under Title IX, ruling that “[t]he increased risk of liability also constitute an undue hardship that Title VII does not require BCSC to bear.”

So how does a school grappling with this issue reconcile the different outcomes in Meriwether and Kluge?  Kluge was decided second, and the judge tried to explain the difference:

Without expressing an opinion as to the correctness of that case’s holding or its application to the facts of this case, the Court observes that Meriwether is not binding precedent in this Circuit, that it involved a First Amendment claim rather than a Title VII claim, and that courts have continually emphasized the distinction between public K-12 schools and universities in addressing speech and other constitutional issues.”

Kluge is on appeal to the Seventh Circuit, so keep an eye on this case.  It was argued in January 2022, but a decision was postponed to allow the parties to address whether the Supreme Court’s decision in Kennedy v. Bremerton School District, 142 S.Ct. 2407 (2022), should have any impact on the outcome.  Briefing was finished in the summer, so we can expect a decision at any time.  In the meanwhile, if you have any questions about this issue, please reach out to any member of Thompson & Horton’s employment team.