The Great Pronoun Debate Continues Unresolved!

Last week the Seventh Circuit issued its long-awaited decision in Kluge v. Brownsburg Comm. Sch. Corp., __ F.4th ___, 2023 WL 2821871 (7th Cir. 2023), a case involving a high school music teacher (Kluge) who was terminated (or forced to resign) for refusing to use the gender-preferred names and pronouns of transgender students in his class, which he objected to on religious grounds.

I reported last January on the district court decision in this lawsuit, which held that requiring Kluge to use preferred names and pronouns – and to stop referring to students by their last names only – 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.  That decision conflicted with Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021), an earlier Sixth Circuit case in which the Court sided with the employee.

After a slight delay to allow the parties to brief any impact that the Supreme Court’s Kennedy decision might have on this case (spoiler alert: it apparently had none, since Kennedy is mentioned nowhere in either the majority or dissenting decision), the Seventh Circuit has issued a 134-page opinion in which the majority ruled in favor of the school district.

Although the opinion features a very detailed discussion of the facts of the case (one has to wonder if the Supreme Court’s somewhat shabby treatment of the record in the Kennedy case has encouraged courts of appeals to include more facts in their opinions, at least in culture-war-type cases like this one), and a thorough discussion of the standard for Title VII discrimination claims, the Court’s decision is really fairly straightforward and largely tracks the logic of the district court:

Brownsburg has demonstrated as a matter of law that the requested accommodation worked an undue burden on the school’s educational mission by harming transgender students and negatively impacting the learning environment for transgender students, for other students in Kluge’s classes and in the school generally, and for faculty.  Title VII does not require that employers accommodate religious practices that work an undue hardship on the conduct of the employer’s business; that sometimes means that a religious employee’s practice cannot be accommodated.

(Opinion, pp. 78-79).  The Court held that “[a] practice that indisputably caused emotional harm to students and disruptions to the learning environment is an undue hardship to a school as a matter of law….. Education is, indeed, the business of every school. Thus, emotional harm to students and disruptions to the learning environment are objectively more than de minimis or slight burdens to schools.”  (Opinion, p. 51.)  The Court therefore upheld the dismissal of the Title VII discrimination claim on the undue hardship prong.

Although the lower court had also ruled that the increased risk of liability from potential Title IX lawsuits brought by transgender students also constituted an undue hardship that Title VII did not require the school district to bear, the Seventh Circuit decided that it did not need to reach that issue, having ruled for the school district on its first “undue hardship” argument.  (Opinion, p. 68.)

Judge Brennan wrote an equally long opinion dissenting on the Title VII discrimination issue, largely based on his belief that some of the evidence from teachers and students that the last-names-only practice of Kluge did not really cause any problems, and that some of the teachers and students upon whom the majority had relied had admitted that they were biased, created enough of a fact issue that the case should have been submitted to a jury.

There were three factors that seemed important to the Court in resolving the case in favor of the school district (and really in favor of the transgender students), that other courts might use to distinguish a fact scenario before them from that in Kluge:

  1. This was not a situation where a school district simply told a teacher that he had to use the gender-preferred names or pronouns of students. This school district had put a significant amount of work into developing its initial policy on transgender names – that teachers had to use the official name that was in the school’s online directory, and that students could only change their names/gender markers in that directory with a written request from the student’s parents and healthcare providers – and then spent over a year trying to work with Kluge to accommodate his religious needs, by allowing him to call students by their last names only (supposedly like coaches did with athletes). It was only after it had allowed the accommodation for almost an entire school year and had determined that that accommodation was not working, that the school told Kluge that he had to resign or be fired.
  2. To that same end, when the school district decided that the last-names-only accommodation was not working, it had overwhelming evidence from students, parents, and other teachers, as well as things personally observed by the administrators involved, that the last-names-only accommodation was not working and was actually starting to cause transgender students to feel disrespected, targeted, isolated, and dehumanized, and was causing disruption in other classes.
  3. Third, the court emphasized that Kluge’s practice was contrary to the preferences of not only the school and the students, but also the students’ parents and healthcare providers. To the extent you have a judge who is pro-parental rights, this factor might make a significant difference in their analysis.

So in the end, the lesson of the Kluge decision may well be that while courts are willing to agree ultimately with school districts that it can be an undue hardship to try to accommodate an employee’s religiously-motivated desire not to use the gender-preferred names and pronouns of transgender students, the courts want to see a sincere effort to try to accommodate those religious needs on the front end of a dispute[1], and solid evidence that a real hardship exists on the back end.

Given the Meriwether decision, there is now a fairy significant circuit split between the Sixth and Seventh Circuits on this issue, so an appeal to the Supreme Court seems likely.  Be sure to stay tuned to the Educated Employer to track this evolving legal issue!


[1] Although the Court did acknowledge that “employers are not required to negotiate with employees about a religious accommodation,” citing an earlier Seventh Circuit case (Opinion, p. 61), the judge’s repeated emphasis of the school district’s year-along effort to make the first-names-only accommodation work seems to indicate that this was a significant factor in the majority’s decision.