Waukesha judge: Kettle Moraine teachers need parent consent to use trans students' names

A Waukesha judge has ordered that Kettle Moraine School District staff cannot use transgender students' names and pronouns without getting parental permission.

In a ruling Tuesday, Waukesha County Circuit Judge Michael Maxwell sided with parents who sued the school district in November 2021 after staff used their child's chosen name and pronouns at Kettle Moraine Middle School. The parents did not support their child's transition.

School district officials did not say immediately whether they planned to appeal. Ronald Stadler, an attorney who represented the school district in the case, said it was a decision that must be made by the school board, which has not yet met to discuss it.

Carl Millard, president of the Kettle Moraine School Board, applauded the judge's decision. He was elected to the school board in 2022, after the lawsuit was filed in 2021, and he noted much of the board has changed since then. GOP-backed candidates booted school board incumbents in Kettle Moraine and other area districts in 2022.

"Prior board actions do not reflect current board consensus," Millard said in a statement Wednesday. "The Kettle Moraine School Board looks forward to devising policy language affirming parental rights."

Kettle Moraine Superintendent Stephen Plum said the district will "continue to require written parental consent if and when using a student’s name or pronouns at odds with the student’s sex at birth."

Attorneys for the district had argued that refusing to use a child's chosen name and pronouns could violate federal law that protects students from gender-based discrimination.

Numerous organizations that support LGBTQ+ youth emphasize the importance of respecting names and pronouns that students feel most comfortable with, including the Wisconsin Department of Public Instruction.

Brian Juchems, a co-executive director of GSAFE Wisconsin, said public schools are tasked with keeping students safe regardless of race, income, religion, sexual orientation or gender identity.

"At school, safety includes using the name a person wants to be called. Because that's respectful, and makes a person feel safe," he wrote in an email.

Legal challenges over pronoun policies nationwide

The lawsuit was brought by two conservative law firms, the Wisconsin Institute for Law & Liberty and the Alliance Defending Freedom. The ADF and other conservative firms have pursued lawsuits over pronoun policies around the country.

David Schwartz, a constitutional law professor at the University of Wisconsin-Madison Law School, said that although "there may be a handful of other (similar) cases around the country, it's a relatively new area."

The ruling does not set a binding precedent for other courts in Wisconsin, Schwartz said. While the ruling could be referenced in other cases, no other court is legally obligated to follow it.

Litigation on school pronoun policies is in its infancy, according to Christy Mallory, the legal director at UCLA School of Law's Williams Institute. It’s the country’s first national think tank on issues of sexual orientation law and policy.

“It’s not like there's this long history of case law or there's this big (federal) circuit (court) split,” she said. “It's very much in its early stages for litigation on this issue around the country.”

Other judges outside Wisconsin have dismissed lawsuits over similar policies

Outside of Wisconsin, other lawsuits over related school policies have been dismissed.

In December, a federal judge dismissed a lawsuit by Massachusetts parents who argued their civil rights were violated when their children were allowed to use different names and pronouns at school without informing them. The judge cited a state law that bans discrimination on the basis of gender identity in public schools, according to reporting by MassLive.

In August, a federal judge dismissed another lawsuit from parents against a school policy in Maryland that allows students to change their names and pronouns without parental involvement. That judge found the parents didn't have standing to sue because their children hadn't changed their names or pronouns; they simply had a "policy disagreement."

Last year, the Wisconsin Supreme Court chose not to block a Madison public schools policy that allows students to self-identify their names and pronouns without parental permission. Justice Brian Hagedorn declined to rule on the policy itself, instead affirming a lower court decision that the parents who brought the lawsuit had to share their identities with defense attorneys to allow for a fair defense.

Judge says Kettle Moraine policy violates parental rights, rejects Title IX argument

In Waukesha County on Tuesday, Judge Michael Maxwell said the school district's decision to affirm a student's transition without parental consent "violates parents' constitutional right to determine the appropriate medical and healthcare for their children."

Maxwell said he was persuaded by the plaintiff's argument that changing a student's pronoun was a "medical" decision and therefore should be under parental control, comparing it to administering medicine without parental consent.

Equating using a child’s preferred pronoun or name to mental health treatment is a novel argument, Mallory said.

“It's a little hard to wrap your head around how a teacher calling a child by their name or pronoun is essentially a mental health treatment,” she said.

On the other side, attorneys for the school district argued that staff were concerned that they could violate Title IX if they did not use a student's chosen name and pronouns, according to court documents.

Title IX is a federal law that prohibits discrimination on the basis of sex. The Office of Civil Rights, which enforces the law, has interpreted Title IX to protect students from discrimination based on gender identity and sexual orientation. The Rhinelander School District recently had to make changes after the OCR found the district hadn't properly responded to a student who was harassed for being nonbinary, which included being called the wrong pronouns.

Maxwell was unconvinced by the Title IX argument. He cited another court decision that found the risk of liability under Title IX was merely "speculative."

Maxwell's ruling echoed the "parental rights" arguments that conservative groups like Moms for Liberty have raised in Wisconsin and across the country to oppose school-based efforts to support LGBTQ+ students. Parent-rights bills have been introduced in 26 states, including Wisconsin, according to tracking by FutureEd, including the Florida law known by opponents as the "Don't Say Gay" law, which bans classroom instruction on gender identity and sexual orientation through high school.

Maxwell was elected to the circuit court in 2015 with endorsements from Republican lawmakers, as well as Supreme Court justices Annette Ziegler and Michael Gableman. Last month, he ruled in favor of WILL in another case, ordering that election officials cannot use a federal voter registration form accepted in most states.

Luke Berg, deputy counsel with WILL, said the decision Tuesday was a "major win for parental rights."

"The court confirmed that parents, not educators or school faculty, have the right to decide whether a social transition is in their own child’s best interests," Berg said in a statement.

One of the parents who brought the lawsuit, Tammy F., who hasn't shared her last name, said she hoped the ruling sends a "message" that parents "have the right to decide" whether their child socially transitions. A "social transition" refers to changing a name and pronouns.

"No parent should be shut out of their child’s education let alone consequential social and medical decisions that can affect the rest of their lives," she said in a statement provided by WILL.

Limiting students' control over their names has mental health consequences

Bex Streit isn’t necessarily surprised about the ruling given lawsuits against school pronoun policies nationwide, but he is disappointed. He’s the transgender and gender nonconforming program coordinator with the MKE LGBT Community Center.

“Young people are trying to figure out a lot of things about themselves and allowing them the space to be able to explore whatever that is — different names and pronouns, what their style is, any of these kinds of things — it allows them the space to figure out who they are,” Streit said.

He also worries that the ruling could lead teachers to out students to their parents, breaking student trust and taking that opportunity away from them.

“Maybe this student was going to come out to their parents. They were just trying to think about the best way to do it or the best timing, and now you've taken that opportunity away from them,” he said.

Cameron Overton, the executive pastor at Zao MKE Church in Milwaukee, said he was shocked by the ruling.

“As a trans person myself, I know that it was really important for people to see me the way that I always had seen myself as a child,” he said. “I was not given the space or the opportunity to really understand who I was, nor would it have been a safe place for me to do so.”

Overton worries that this ruling will result in teachers and schools outing LGBTQ+ kids to their parents. Outing is when someone publicly reveals another person’s sexual orientation or gender identity without that person’s consent.

“The majority of students are coming out to friends, coming out to safe teachers, and so I think this is the wrong thing,” he said.

A 2018 study in the Journal of Adolescent Health found that transgender students who were allowed to use their chosen names reported 71% fewer symptoms of depression and 65% decrease in suicidal attempts than their peers who were not.

Wisconsin Institute for Law & Liberty has history opposing gender-affirming policies

The Wisconsin Institute for Law & Liberty has been working against gender-affirming policies in other venues, too, including the state Legislature and local school boards.

WILL has lobbied state lawmakers to support a parental “bill of rights” that would give parents control over the names and pronouns used for students at school. Gov. Tony Evers vetoed that bill in the last session, but Republican lawmakers are reviving it.

WILL has also drafted a model policy for school boards that would forbid staff from using students’ chosen names and pronouns without written permission from their guardians. A school board member in Whitnall recently proposed the school district adopt the policy, but it failed to gain support from other members.

Reporter Alec Johnson contributed to this report.

Contact Rory Linnane at rory.linnane@jrn.com. Follow her on Twitter at @RoryLinnane.

This article originally appeared on Milwaukee Journal Sentinel: Judge blocks Kettle Moraine School District policy on pronouns, names