Quinn Clark
The Muskego-Norway School Board removed gender identity from its anti-discrimination policy Monday, raising concerns from parents and civil rights experts about what the decision could mean for transgender or nonbinary students.
The board's policy originally said: "The Board does not discriminate on the basis of sex (including sexual orientation or gender identity), in its education programs or activities."
Now, it will only include the words "sexual orientation."
The board originally considered removing both sexual orientation and gender identity from its policy. But school board president Terri Boyer proposed removing just the words "gender identity" to remain "consistent with Wisconsin state law," she said at the meeting.
Besides Boyer's suggestion, which the board approved, there was no discussion regarding the decision to alter the policy. Neither Boyer, the district's superintendent Todd Irvine, nor the district's communications specialist Alyssa Meyer responded to multiple calls and emails requests for comment Tuesday.
Boyd did not clarify which "state law" she was referring to at the meeting. While the state's pupil nondiscrimination laws do not specifically mention gender identity, the Wisconsin Department of Public Instruction encourages schools to adopt nondiscrimination policies that include gender identity or expression.
The DPI also notes that creating a safe environment for LGBTQ+ students is essential for their educational success.
A Muskego parent contacted Public Investigator with concerns about the district's updated policy and whether protections will remain for LGBTQ+ students. The parent also wondered if the district could face legal ramifications after LGBTQ+ advocacy groups filed a federal complaint against nearby Kettle Moraine School District earlier this month alleging Title IX violations.
Signed into law in 1972, Title IX bans discrimination against students and staff in federally-funded education programs on the basis of sex.
The Muskego-Norway School Board's decision comes after the self-described parental rights group Moms for Liberty sued over the Biden administration's updated Title IX regulations, which were expanded to include sexual orientation and gender identity.
The lawsuit resulted in a temporary injunction that blocks the U.S. Department of Education from enforcing the new regulations in schools that enroll children of Moms for Liberty members.
However, civil rights experts say Wisconsin school districts must still comply with Title IX, even if the Department of Education cannot enforce those regulations for now. That's because the 7th U.S. Circuit Court of Appeals, which covers Wisconsin, Illinois and Indiana, has upheld that Title IX protects students from discrimination based on gender identity.
Public Investigator consulted Suzanne Eckes, education law professor at the University of Wisconsin-Madison, about the school board's decision. A former lawyer and public high school teacher, Eckes researches how civil rights laws impact education policies in public schools.
Although some Muskego-Norway schools are included on Moms for Liberty's growing list, Eckes said the district cannot exclude transgender students from protections.
"Whether they kick it out of their policy or not, they still need to follow the 7th Circuit Court of Appeals' decision," said Eckes, who clarified that she is speaking on her own behalf, not the university's.
In one 7th Circuit case, a transgender student filed a federal lawsuit against the Kenosha Unified School District for banning him from using the boys' restrooms and referring to him by female pronouns. The court ruled in his favor in 2017, confirming Title IX protected him from discrimination.
Eckes said a case filed in Indiana last year also affirms Title IX protections for transgender students in Wisconsin. In that case, the district court granted injunctions to three students who challenged their school districts' policies that banned them from using bathrooms consistent with their gender identities.
The court ruled in the students' favor due to the likelihood that they would succeed on their claims, Eckes explained. The 7th Circuit later upheld the ruling, confirming the Indiana court's decision.
A Wisconsin school district's failure to address bullying or harassment of any kind against transgender students could result in a successful discrimination claim, Eckes said.
Eckes said past U.S. Supreme Court rulings also demonstrate that Title IX protects transgender students.
In 2019, the Supreme Court ruled that Title VII, which prohibits employment discrimination, includes sexual orientation and gender identity. In the past few years, Eckes said, courts have been referring to the Supreme Court's interpretation of Title VII when interpreting Title IX.
"Even before all the hoopla with the Biden regulations, courts have been recognizing that Title IX prohibits discrimination on the basis of sexual orientation and gender identity," she said.
Abigail Swetz is the executive director of Fair Wisconsin, one of the LGBTQ+ advocacy organizations involved in the federal complaint against Kettle Moraine. Swetz said both Fair Wisconsin and LGBTQ+ advocacy organization GSAFE are gathering information to determine the best course of action, which could include filing more lawsuits.
"This is why it is so important that we learn of votes like the one taken by the Muskego-Norway school board," said Swetz.
Swetz said Fair Wisconsin and GSAFE encourage anyone with information regarding discriminatory actions taken by school boards to email testimony@fairwisconsin.com.
Quinn Clark is a Public Investigator reporter. She can be emailed at QClark@gannett.com. Follow her on Twitter at @Quinn_A_Clark.
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