Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
On April 7 the Seventh Circuit handed down a decision that addressed the interplay between teachers’ religious rights and the rights of transgender students to a non-discriminatory learning environment. The suit was brought by an orchestra teacher in Indiana, John Kluge, who argued that he required a religious accommodation in order to not have to call transgender students by their names. He stated that his religion opposed “transgenderism” and that he only wanted to call students by their legal names. (It was not clear what he would have done if their legal names were consistent with their gender identity, rather than with the gender they were incorrectly assigned at birth). The school initially accommodated the teacher by allowing him to call all students solely by their last names. Both transgender and cisgender students reported that it was obvious that this system was put in place because of the transgender students in the class and made the transgender students “stand out.” At least one of the transgender students also alleged that Kluge slipped up and misgendered him on a few occasions. The school eventually told Kluge he would have to call students by the names listed in the school’s system, and if he would not, he would be forced to resign or be terminated.
Proceedings in the district court
Kluge initially sued the school under Title VII for religious discrimination/failure to accommodate, retaliation, and a hostile environment based on his religion. He also brought claims under the First Amendment, Fourteenth Amendment, and Indiana law. The district court dismissed all of the claims except the Title VII religious discrimination/failure to accommodate, and retaliation claims. After discovery, both Kluge and the school brought motions for summary judgment related to the remaining claims. The district court found for the school on both counts.
The district court, as it was required to do in assessing the school’s motion, made certain factual assumptions in Kluge’s favor. It assumed that Kluge had perfectly complied with the last-names-only policy the school had come up with as an accommodation for his religious beliefs. It also assumed that his religious beliefs were sincerely held. The court found that there was a conflict between Kluge’s religious beliefs and the school’s policies of creating an inclusive environment for transgender students and held that the accommodation for Kluge’s beliefs created an undue hardship on the school’s mission of educating all students. On Kluge’s retaliation claim the district court found that Kluge had not presented evidence or argument demonstrating that there was discriminatory intent behind the school’s actions or that administrators’ stated reasons for asking Kluge to resign were pretext for religious discrimination.
The Seventh Circuit Opinion
Under Title VII, as set out in previous Seventh Circuit case law, employers are required to accommodate employees’ religious beliefs and practices unless that accommodation would cause an “undue hardship” to the employer. The Seventh Circuit agreed with the district court that Kluge’s requested accommodation of calling students only by their last names caused such a hardship. As the Seventh Circuit held, “[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.” The Court found that the school had presented substantial evidence of this emotional harm and disruption, and Kluge had presented no evidence to the contrary. Notably, the Seventh Circuit reaffirmed its prior case law that held that in a religious accommodation case, the employer does not need to show that its policy or practice that is burdened by the requested accommodation is in and of itself better than any other policy or practice, only that it is the established policy or practice. Because the majority found for the school that the requested accommodation created an undue hardship by conflicting with the school’s policy of treating students with “respect and affirmation for their identity,” the majority did not reach the questions of whether the school could claim an undue hardship based on the possibility that if it continued the accommodation it could open the school up to Title IX lawsuits by transgender students.
The majority disagreed with the district court’s determination that Kluge had waived his retaliation claim on summary judgement because he did not sufficiently brief it. However, it agreed with the district court that the retaliation claim failed because Kluge did not produce evidence that his termination was connected to any protected activity he engaged in. The majority noted that to make out his retaliation claim Kluge was required to show that his protected activity (here, requesting a religious accommodation) was the but-for cause of the termination, and that he failed to meet that burden.
Judge Michael Brennan wrote in partial dissent, stating that he would have found for Kluge on his religious accommodation claim. Judge Brennan, while criticizing Supreme Court precedent on what constitutes an “undue hardship” under Title VII’s religious accommodation provision, framed the question at issue as: “Do complaints of offense constitute more than a de minimis cost?” By framing the issue as people “taking offense” at Kluge’s actions rather than that Kluge’s actions caused actual harm to students, the dissent then argues that there were enough disputed facts for the case to have gone to a jury.
The dissent also noted that the Supreme Court recently granted cert in a case that addresses the “undue hardship” standard under Title VII, suggesting that the current framing of the “undue hardship” standard may be on its way out the door. In Groff v. DeJoy, which will be argued next week, the Supreme Court will review two issues: (1) whether the “more than de minimis cost” definition should remain the law for determining if a proposed religious accommodation would impose an undue hardship on the employer, and (2) whether an employer can show an undue hardship solely by showing that the accommodation would burden other employees. Numerous religious groups, religion and employment scholars, a coalition of states, and John Kluge himself have filed amicus briefs arguing for overturning the current “undue hardship” standard, while a group of states, including Massachusetts, as well as civil rights groups has weighed in in support of the current standard.
Kluge is unquestionably a win for students who want to know that they will be respected at school and that teachers cannot use religion as an excuse to intentionally misgender them. However, since the Supreme Court has decided to review the existing “undue hardship” law, a decision in Groff that changes the standard for showing “undue hardship” could call into question Kluge’s holding. Because Kluge came to the courts as a question of religious accommodation, it also does not address some of the more fundamental legal questions that have been percolating around the country about how antidiscrimination laws protect trans students. Given the explosion of state-level legislation imposing barriers to trans minors’ full participation in society, the ways in which the Constitution and anti-discrimination statutes protect trans students will continue to be fleshed out in the courts over the coming months and years.