IMPORTANT UPDATE: Applicability of Title IX Litigation to Wisconsin Schools

In a decision issued on July 2, 2024, the U.S. District Court for the District of Kansas (“Court”) enjoined the U.S. Department of Education/Department of Justice (“Department”) from “implementing, enacting, enforcing, or taking any action to enforce the new Title IX regulations against Kansas, Alaska, Utah, Wyoming, KR’s school, the schools attended by the members of Young America’s Foundation or Female Athletes United, as well as the schools attended by the children of the members of Moms for Liberty.” The Court ordered the Plaintiffs’ organizations to file a notice in the record identifying the schools which their members or their members’ children, as applicable, attend by the end of the day on Monday, July 15, 2024.

On July 10, 2024, the Department appealed the Court’s order to the 10^th Circuit Court of Appeals.

On July 12, 2024, Moms for Liberty (“MFL”) submitted a list of Counties where their organizations have members. The Wisconsin list seemed to have most, if not all, of the counties in the state. On July 15, 2024, all Plaintiffs’ organizations submitted a second document, which includes a list of schools where their members’ children attend. The Wisconsin list is quite short.

Today, the Court ruled on motions from both parties filed after the Court’s initial ruling. The Department asked the Court to limit the injunction to the provisions in the new regulations regarding gender identity and to limit the scope of the injunction to members of Plaintiffs’ organization as of the date of filing or the date the injunction was entered. MFL asked the Court to prohibit the Department from enforcing the new regulations in any county in which they have a member instead of limiting the relief to the schools attended by the members’ children.

The Court denied the Department’s motion to limit the injunction to the provisions related to gender identity and the motion by MFL to extend the injunction to any county in which they have a member on the basis that it lacked jurisdiction to act in any way other than to preserve the status quo of the original order during the pendency of the Department’s appeal.

The Court also clarified, however, that the injunction applies to all current and prospective members of the Plaintiffs’ organizations. To that end, the Court stated that MFL would have until July 26, 2024, to file a notice of schools attended by its members’ children.

School districts should review the list included below and any additional lists submitted by MFL to determine if one or more of their schools are listed.

It is important to note that the Court’s order does not prohibit any school districts from taking action to adopt a policy or adhere to regulations. Rather, the Court’s order is focused on the actions of the Department. It prohibits the Department from holding school districts accountable if they choose not to follow the regulations. As a result, school districts are free to proceed and adopt the policy revisions arising out of the new Title IX regulations prior to August 1, 2024.

Notably, the reason Plaintiffs sought this injunction was primarily based on the expanded definition of “sex” in Title IX as a result of the new regulations. The new 34 CFR §106.10 clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Additionally, 34 CFR §106.31 has been added to confirm:

• No person shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or otherwise be subjected to discrimination under any education program or activity.
• In the limited circumstances in which Title IX permits differential treatment or separation on the basis of sex, the educational institution must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm.
• Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.

This definition of “sex” and these obligations, however, already apply to Wisconsin because of case law decided by the federal courts with jurisdiction over Wisconsin, Illinois, and Indiana, including Whitaker v. Kenosha Unified School District and A.C. v. Metropolitan School District of Martinsville, as well as Wis. Stat. §118.13.

In Whitaker, which was decided in 2017, the plaintiff, who was assigned the sex of female at birth and was diagnosed with gender dysphoria, identified as male, and had begun hormone replacement therapy before seeking permission to use the boys’ restroom, which the District denied. The 7^th Circuit Court, observing that neither Title IX nor implementing regulations defined the term “sex,” looked to the U.S. Supreme Court’s 1989 decision in Price-Waterhouse v. Hopkins, as well as the 7^th Circuit Court’s own en banc decision holding that Title VII’s bar against sex-based discrimination includes discrimination based on sexual orientation. The 7^th Circuit Court held that because a transgender student does not conform to stereotypes of the sex that he or she was at birth, the student asserts a cognizable Title IX claim when alleging that the discrimination was based on a failure to conform to sex stereotypes. The 7^th Circuit Court explained that “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.” The 7th Circuit Court upheld the preliminary injunction enjoining the school district from denying him access to the boys’ restroom. A petition for certiorari in the case was denied by the U.S. Supreme Court in 2018.

In A.C. v. Metro, which was decided in August 2023 and involved three transgender students, the 7th Circuit Court refused to overturn Whitaker, stating, “Whitaker has been the governing decision in our circuit since 2017, and the school districts have not identified any substantial injuries it has caused.”

Wis. Stat. §118.13 prohibits discrimination on the basis of the person’s sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional, or learning disability within the public schools. The statute directs that that no person may be denied admission to any public school or be denied participation in, be denied the benefits of or be discriminated against in any curricular, extracurricular, pupil services, recreational or other program or activity because of one of the listed protected classifications.

It is also important to remember that many Wisconsin school boards have already committed to this expanded definition of “sex” in existing Board Policies. For example, school boards that have adopted NEOLA policies 2260 and 5517 have been enforcing the following language for several years:

Policy 2260

The Board does not discriminate on the basis of race, color, religion, national origin, ancestry, creed, pregnancy, marital status, parental status, sexual orientation, sex (including gender status, change of sex or gender identity), or physical, mental, emotional, or learning disability (Protected Classes) in any of its student programs and activities.

Policy 5517

The Board will vigorously enforce its prohibition against harassment based on the traits of sex (including gender status, change of sex, or gender identity), race, color, national origin, religion, creed, ancestry, marital or parental status, sexual orientation or physical, mental, emotional or learning disability, or any other characteristic protected by Federal or State civil rights laws (hereinafter referred to as “Protected Classes”), and encourages those within the School District community as well as Third Parties, who feel aggrieved to seek assistance to rectify such problems. Additionally, the Board prohibits harassing behavior directed at students, including at a group of students, for any reason, even if not based on one of the Protected Classes, through its policies on bullying (See Policy 5517.01 – Bullying).

We are closely watching the Court in Kansas and any response from the Department. Some have opined that the Department might choose to push the August 1, 2024, deadline to January 31, 2025, as suggested by the Court today, in order to avoid giving whiplash to the school districts across the country if Donald Trump is elected in November.

To date, on the U.S. Department of Education’s website, the Title IX regulations include the following statement:

As of July 2, 2024, the Department is currently enjoined by federal court orders from enforcing the 2024 Title IX regulations in the states of Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia, and Wyoming, and the regulations and these resources therefore do not currently apply in those states.

Wisconsin is not included on that list.

Based on all of the above, we are not recommending that school boards delay the adoption of the new Title IX policies and procedures. At this point, the injunction prohibits the U.S. Department of Education/Department of Justice from enforcing the rules at only a limited number of Wisconsin schools. All other Wisconsin schools are subject to the Department’s enforcement authority.

Further, while we do not believe there is a meaningful risk of liability for school boards that choose to adopt the 2024 regulations, we also do not believe that a school district who fails to meet the August 1, 2024, deadline is at any real risk of losing its federal funding. We are not aware of any cases of a school district losing federal funding because it failed to timely adopt a mandatory policy and do not believe that will be the case here.

It is possible, however, that an individual may file a complaint with the U.S. Office for Civil Rights (OCR) and OCR may in turn investigate the complaint and require the school district to come into compliance with the law, conduct additional training, and/or submit to extended monitoring. Such claims typically do not get resolved for 6-12 months and often require the expenditure of significant staff resources and may result in substantial legal fees. In addition, if a school board fails to adopt the new policy and the school district improperly processes a sexual harassment/sexual assault complaint, a complainant or a respondent who believes the school district’s failure has harmed them could seek redress in the courts and establish liability. Finally, a taxpayer lawsuit could be pursued against a school district and its board members/administrators to force the school district to approve the new policy and to hold the board members/administrators accountable for their role in the failure. (Note: Depending upon the type of suit, it is likely that the school district’s board members/administrators will be indemnified by the school district and covered by the school district’s insurance carriers for legal defense and damages arising out of such a lawsuit).

Finally, school boards should be mindful that regardless of whether a board adopts a policy, a school district will still be required to comply with the law (statutes, regulations, and case law) in effect at the time, including the law that requires the school district to accommodate/protect transgender and gender nonconforming students and others protected under Title IX. School districts do not have the right to opt-out of Federal or state law.

We will continue to update you as additional information becomes available.

List of Wisconsin Schools Identified on July 15, 2024

Pecatonica High (Blanchardville WI)

Brookfield Academy (Brookfield WI)

Memorial High (Eau Claire WI)

Elkhorn Area High (Elkhorn WI)

Career And College Academy (Elkhorn WI)

Bay Port High School (Green Bay WI)

Notre Dame De La Baie Academy (Green Bay WI)

St. Paul Lutheran Green Bay (Green Bay WI)

Hartford Union High School (Hartford WI)

Lake Country Lutheran High School (Hartland WI)

Arrowhead High (Hartland WI)

Holmen High (Holmen WI)

Kettle Moraine Lutheran High School (Jackson WI)

Lodi High (Lodi WI)

Abundant Life Christian School (Madison WI)

Menomonee Falls High (Menomonee Falls WI)

Homestead High (Mequon WI)

Milton High School (Milton WI)

St. Thomas More High School (Milwaukee WI)

Marquette University High School (Milwaukee WI)

Muskego High School (Muskego WI)

Lake Country Classical Academy (Oconomowoc WI)

Westosha Central High School (Salem WI)

Stevens Point Area Senior High (Stevens Point WI)

Superior High (Superior WI)

West Allis Central High (West Allis WI)