There is an important ruling this month out of the United States Court of Appeals for the Seventh Circuit, which ruled against former high school music teacher John Kluge for refusing to comply with the school’s pronoun policy for religious reasons. What is most curious about the ruling is the timing. The Seventh Circuit opinion from April 7th is particularly interesting given the oral argument in the Supreme Court in Groff v. DeJoy only 11 days after the appellate ruling. Groff could gut the underlying standard used by the Seventh Circuit in its ruling for the school district. The opinion also puts the appellate court in conflict with the United States Court of Appeals for the Sixth Circuit in its recent Meriweather decision.
Kluge sought an accommodation in using just the last names of the students “like a sports coach” and had another teacher hand out gender-based band uniforms. However, he sought to compromise in formal settings by using both names:
In May 2018, as part of the curriculum, Kluge participated in an orchestra awards ceremony. R. 120-3, at 32–33. At the ceremony, he addressed the students, including the transgender students, by their first and last names as they appeared in PowerSchool. … Kluge explained that he did this because “it would have been unreasonable and conspicuous to address students in such an informal manner at such a formal event as opposed to the classroom setting where teachers refer to students by last names as a normal form of address.”
We have discussed the last name option in earlier posts, including the settlement in the Meriwether case. In Ohio, Shawnee State University Professor Nicholas Meriwether, won a major appeal before the Sixth Circuit, which reversed a lower court that initially upheld his punishment for not using a student’s designated pronoun choices. The school had refused Meriwether’s suggested compromises to just use the last name of the complaining student or use chosen pronouns after adding a personal disclaimer on the syllabus.
These are admittedly difficult cases. On one hand, you have the religious beliefs of a teacher who feels that the use of these pronouns contradicts a core element of faith. On the other hand, you have a school district that believes that the refusal to use the student’s preferred gender and name is emotionally and developmentally harmful.
These questions come down legally to the level of accommodation required under federal law and the Constitution. That is precisely the issue in Groff that is now awaiting a decision of the Supreme Court. Gerald Groff was fired as a postal worker after refusing to work Sundays to observe his Sabbath.
Under Title VII, it is “an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held “[t]he intent and effect of this definition was to make it an unlawful employment practice under [sec. 2000e-2(a)(1)] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” The Court held that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” That de minimis test is at issue now in Groff and the Court is likely to change or dispense with the test, in my view.
The Seventh Circuit relied on Hardison in ruling for the district, finding that it initially tried the accommodation of using last names but decided that it was not sufficient to protect the mental health of students:
The school stretched to accommodate Kluge with a facially neutral accommodation of using last names only; nonetheless, the undisputed evidence showed that the practice resulted in genuine harm to students and real disruption to the learning environment. Moreover, Kluge’s practice was contrary to the preference of not only the school and the students, but also the students’ parents and healthcare providers, who had decided that it was in the best interest of these children to be addressed in a particular manner, with their PowerSchool names and pronouns.
It is interesting that the Seventh Circuit did not wait for the Groff decision, but it is not required to do so. There is also now a split in the circuits on the pronoun question with the unanimous opinion in the Meriwether case. (The Seventh Circuit does not discuss the opposing case).
Even if the Supreme Court does not negate the basis for the Seventh Circuit decision by changing the underlying test, the split in the circuits would militate in favor of a review of the pronoun controversy by the Court.
As we prepare for the Groff decision, I wanted to share the Seventh Circuit opinion.
Here it is: Kluge v. Brownsburg Community School Corp.
We should all be alarmed of the denigration of our youth but who has allowed it . Today many young people are obese and can’t even get into the military yet we have adults trying to trangrestion a seven year old . Joe Biden has been the most destructive president in my lifetime with his race bating and destroying womens sports with male transgenders . That on top of destroying our economy on fake climate change science like putting everything he owns on one number in LasVagas and losing without any regrets . Democrats need to be beaten bad come 2024 and I mean real bad for the price they have done to our country . Take those pronouns and put them where the sun don’t shine .
We lost our nation to communist voter fraud. You’re a bit late.
Live not by lies… Alexander Solzhenitsyn
Once the left and democrats discover a more effective weapon to enforce obediance and control, the mandated use of pronouns will die off like any other fad. It simply is unworkable as a matter of language expression as evidenced by the fact that in common usage among most people is is never used. It is only maintainable in controlled environments such as academia and the workforce which have a environment of coercion to force compliance. Without the coercion almost nobody will voluntarily use non-standard pronouns, only those who either have a vested interest in maintaining the pronouns or are using them for the purpose of self-righteousness or to protect themselves from criticisim from their own peers it will.
Excellent
I would disagree only to a tiny extent.
Pronouns will remain weaponized by the left, when it is to their advantage to take someone out.
There are citizens.
There are school districts comprised of citizens.
Teachers unions are antithetical and unconstitutional.
Teachers unions are a seizure of power and imposition of the “dictatorship of the proletariat.”
Teachers unions are illicit and unconstitutional in their denial of the rights and freedoms of citizens.
Teachers unions are pure communism.
Teachers unions must be terminated with extreme prejudice.
_______________________________
“Give me just one generation of youth, and I’ll transform the whole world.”
– Vladimir Lenin
All labor unions are, under the very BEST circumstances, always parasites. They always add zero value to any process, good or service yet add cost. That’s the best case. Life never gives us the best case.
There is no fundimental free market objection to labor unions.
There is little difference between labor coordinating to sell its services, than buyers getting together to negotiate better prices.
The big problem with our current labor law is that Government violates the constitutional prohibition against putting its finger on the scale with respect to contracts.
Government exists to enforce contracts – not to negotiate private contracts. Get rid of the NLRB and all laws regarding labor unions and negotiations.
Let owners and labor contract freely.
Labor is not anymore inherently parasitic than management or owners.
Each should ALWAYS be free to attempt to negotiate the best possible price for the value it delivers.
The price of anything – including labor is determine by the market. So long as the market is free there is no difference between the market for labor and the market for breakfast cereal.
As a practical matter – labor unions are inefficient, and given an actually free market will only thrive when management overplays their hand.
So Unions are as free to exist as churches or any other arrangement where people work together for a common cause.
Government should do nothing beyond enforce freely negotiated contracts.
Do that and unions will be rare – because they are inefficient.
On the other hand, you have a school district that believes that the refusal to use the student’s preferred gender and name is emotionally and developmentally harmful.
Where is the consideration for the emotional and developmental needs of the 99% of students not yet suffering from gender dysphoria? The only high school in our small town has a separate school on campus for students that do not or can not manage to cope within the standard academic setting. The obvious benefit is each school was structured to accommodate the needs of their students to maximize their opportunity to learn. Of course that reflects a school committed to teaching, as opposed to indoctrinating. Instead of a religious accommodation, this teacher should have gone for a sanity and/or emotional accommodation for himself and the 99% of his students just wanting to go to school, get educated and graduate.
Quoting from D. H. Lawrence [Lady Chatterley’s Lover]; “Ours is essentially a tragic age, so we refuse to take it tragically.”
The future of this great country is in jeopardy, when science, common sense, and words can change on a puff of ‘YOU HURT MY FEELING’.
Miscreants a many! Roaming about, stewing discontent and chaos, clearing the path to dystopia and governing overlords of infantile character.
Continuing with Lawrence from “Pansies” Self-Pity; “I never saw a wild thing Sorry for itself.”
Bad approach to use religion as the basis for his objections. Religion has nothing to do with language. Someone’s religious beliefs cannot be used as the basis for discrimination against other people.
By basing his objections on religion, he muddled and may have conceded the issue. “Okay for thee but not for me.” (The religion-based vaxx exemption seekers did the same thing when they had more appropriate arguments, such as: EUA only, not safe, not effective, bodily integrity, more.)
If a student insisted on being addressed with the title “Your highness most exalted” as his title, would the teacher have been required to use it? The specious “pronoun” issue is about distorting and changing someone’s LANGUAGE. Nothing else. War is peace…That aside, the only issue is whether the school has the authority to dictate to this employee how his students are to be addressed, employment vs. free speech issue.
In real life and real language, however, it should be noted that pronouns and titles reference an individual’s “sex”, not a “gender”. Myself, I’m old. I can’t always remember stuff like that some totally boy-looking person is a “Ms.” Not after 5 decades of habit speaking the English language while my mind is primarily focused on something else, such as a substantive lecture. ADA or age discrimination might work for a slip-up. Standing on ceremony and deliberately defying rules, not so much.
The bottom line here though is that people don’t have “genders”. Things have genders. Lawyers and judges must stop ignorantly making this all worse. Get accurate and cut off the nonsense at its root.
Also, if “religion” is the only criteria the courts will allow to escape the Attack of the Pronounsters, what do rational people who aren’t religious do? Just put up with the abuse?
A man in womanface is both more offensive to and does more harm to the rights of real women than a white in blackface is to real black people.
If merely saying “I am a girl” will put me in the shower, dressing or bedroom with Taylor Swift or Jennifer Lawrence where do I sign up??
And if you question my new “femininity” you are a BIGOT who should be doxxed and destroyed!
antonio
Pronouns: she/her
I’m a transgender lesbian.
I have an Italian surname. Not one of those cute ones ending in “ini.” It’s got lots of vowels with two put together in an odd combination, sorta like a villain from the Godfather. Teachers have been mispronouncing my name all my life, sometimes intentionally and comically making it sound like a coffee drink or worst yet putting an “ini” at the end. Never once did I think that might be actionable, because it wasn’t. Toughen up buttercup.
Gender dysphoria is a mental illness and recognized as such by the American Psychiatric Society (or whatever their exact name is – no time to look it up). Accommodating transgenders by using their preferred name is not helping them. They need professional treatment. The idea that parents have no say in whether minors can undergo surgery is absurd. The basic understanding for centuries has been that a person cannot make important decisions – such as entering into a legal contract, vote, marry – until they have reached the age of maturity, or unless they have parental permission. That is to protect minors against commercial and other types of predators and against themselves. To change that when it comes to healthcare is ill-advised, and dangerous. I note that we see an increasing trend to move responsibility away from parents to government agencies. I agree that we are moving to a totalitarian state if we are not careful.
You are correct. I draw the analogy to a Dr. having an anorexic patient and giving them diet pills and stomach surgery
Sorry to say but the court is making some illogical assumptions here. The problem is that the offended student is already a total psychological screwup and not using the birth name only reinforces the fantasy. The fact that the parents and “healthcare providers” all support using the Powername means nothing. Who are the providers and what is their expertise. The American Psychiatric and American Psychological societies have already gone off the rails and are perpetuating this abomination of care.
The National Health Services of the UK, and Scandinavian countries have put a near total hold on Trans care because they have found it to be a horrible scam that damages patients even more psychologically and then ultimately mutilates them. Their politics have failed to keep up. The whistle blowers and investigations in the NHS Gender Clinic in London revealed such terrible conditions and misdiagnoses and harm to their patients that it was totally shut down. Patients were diagnosed after 1 visit to the clinic and started on hormone blockers and other medications strictly on a that interview. That happens in the US also.
What most of the public and legal profession must understand is that psychiatric care and psychological assessments are not playbook diagnoses but often these patients have intricate conditions that require long term assessments and reassessments as you pursue the patients actual diagnosis and settle into a corrective course of treatment. Except Gender Dysphoria.
Remember, to diagnose hypertension (high blood pressure) requires three (3) different visits on 3 separate occasions to actually diagnose the condition. And these gender practitioners are starting potent drugs on the first visit of what can be a very complex condition, rarely manifest on an initial visit. Remember also that you can get as many diagnoses from psychiatrists as you have see the patient. Except Gender Dysphoria- 1 visit and Eureka you have it. I think not.
Quit the funding through private insurance, medicaid and Medicare and this problem will shrink severely. We have all become enabler’s of this condition.
This whole issue is so telling of the narcissistic, victim-based society we have become under Democratic occupation. If a student’s mental health can be “genuinely harmed” because of this phony identity language game, then that student has bigger problems than pronouns. I remember when we were kids — it would take more than a pronoun to upset us. In fact, one of my father’s favorite quips was: call me anything you like, just don’t call me late for dinner. Unfortunately, today’s precious tykes — the ones we’re not mutilating or drugging — get traumatized if a teacher uses their real name rather than their fake identity.
These are admittedly difficult cases. On one hand, you have the religious beliefs of a teacher who feels that the use of these pronouns contradicts a core element of faith. On the other hand, you have a school district that believes that the refusal to use the student’s preferred gender and name is emotionally and developmentally harmful.
This is ridiculous. Does that mean that anyone can pervert the English language such that words have no meaning. What about species self identifciation. Do I have a right to demand than my employer recognize my self-identification as a horse? Should the employer indulge me by providing hay in the office kitchen?
This is a sick and demented society
These are not difficult cases at all.
First these are schools – therefore they are government and this is a free speech – not a religious exercise issue.
Next it is a COMPELLED SPEECH issue – which is just about the worst violation of the first amendment there can possibly be.
I do not care if the objection of the teacher is religious – or they just do not wish to use stupid fake pronouns.
No one is entitled to be called by their selected pronouns, their first name, their last name, or any other name.
While it MIGHT be polite to do so, it CAN NOT be legally required without tyranny.
Years ago Jordan Peterson first addressed this complete nonsense in Canada.
This was the issue that made him famous/infamous in the first place.
The emotional harm argument is nonsense.
If humans were that fragile we would have gone extinct long ago.
Contra this claim the EVIDENCE is that Coddling people – particularly young people makes them MORE anxious, and depressed, not less.
Regardless, NO ONE is entitled to anything that REQUIRES others to act in a specific way – and that includes speaking specific words.
This whole pronoun war is idiocy as we almost never call people “by their pronouns” when speaking to them.
We use pronouns when talking about a person to OTHERS.
Further pronouns are NOT your name – you do not own them. You have no rights in pronouns.
The use of pronouns is entirely avoidable. We use them to simplify third party references where the identity of the person being spoken about is clear.
This also makes clear the idiocy of the left. “John” is an identity “he” is not. “He” is an indirect reference.
This is just another stupid left wing nut game to control language and the courts should reject is flat out as unconstitutional attempts to control speech.
I doubt that “school district” has feelings.
So, the 7th Circuit upholds Mr. Kluge’s termination because his reasonable accommodation for his few trans students by using their last names in class and their FIRST and last names at an Orchestra Awards Ceremony caused “emotional harm” to his students ? Seriously ? I think that Mr. Kluge went above & beyond here for his trans students. We are now litigating the use of first & last names in federal court. Let that sink in ……
What is ACTUALLY emotionally harmful to children is over protecting them, as well as protecting them from their narcissism.
You can not legitimately compel anyone to call another anything – not even their legal name.
Regardless, the court rather than protecting kids is HARMING them.
so the government can FORCE you to ignore the science? Test the DNA…that tells you Gender!
Time to start removing these Judges!
“the refusal to use the student’s preferred gender and name is emotionally and developmentally harmful.”
How can JT write this.
This statement tells you all you really need to know about what is wrong with us.
More and more, America seems to be deliberately distancing itself from common sense, of which the Constitution, and the Bill of Rights, were intended to be the manifesto. If we are really interested in protecting children, then encouraging them to live in a fantasy world, and to undergo irreversible procedures in order to prop up that fantasy world, is the antithesis of what we as a society and as individuals should want. How is it that 20 years ago there were like 10 trans people in the world and now every other kid identifies as trans? This is simply a marketing campaign by the forces of darkness. Kids at that age are so vulnerable. Self-loathing is the rule and not the exception in adolescents who are in this very delicate phase of their lives. Yes, they are transitioning – from one phase of life to another. Yes, they should be shielded and protected – from themselves, and from those who would harm them in the name of a fake ideology. In the 80’s, everybody had eating disorders. If the psychologists of today had been active then, I feel like they would have encouraged kids to starve themselves and/or binge/purge rather than try to cure them. One day, this madness will pass, and there will be an entire generation of human beings who were irrevocably harmed by more or less well-meaning adults and they will look at us all and say, “Where were you? Why didn’t you protect us?” My faith in the Supreme Court is minimal. Alito and Thomas seem to be the only two justices worthy of the title. One of Trump’s many mistakes was picking the wrong people. At this point, as Tucker so eloquently said, our only hope seems to be prayer.
Fascism requires the death of Common Sense
Think Mao Cultural Revolution 1960’s…next are the re-education camps
Time to end all federal aid to colleges and cities. Let Democrats pay for their failures!
I agree about the SCOTUS, but my faith is in the Constitution (for now) and God. The timeline of the removal of faith in God as a unifying belief system and the decline of the West are nearly identical with the latter lagging a bit. It certainly do not put faith in mankind. Biden’s comment yesterday about children being the country’s children sent chills up rational people’s spines, but it will be chalked up as another nonsensical comment from him. It wasn’t. He spoke the truth as the Left sees it. They want to eliminate the nuclear family and instead great a government family.
This is not about protection it is about control.
“Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.”.
Shades of Jim Coney the fired FBI Director when he took usurped the DOJ Attorney General in deciding the Clinton “Matter” as the AG wanted the Crimiinal Investigation of Clinton to be called.
Put me on that Jury
I am a reasonable Man….one who has been called a lot of things, names, and insults over my life.
Terms like my Surname only, Officer, Captain, Mister (as used by the US Army for Warrant Officers), and some horrible names by today’s Loony Left Standards.
My Army Drill Sergeants would still be in Prison had today’s standards existed back then…..yet folks….I turned out without any problems as a result.
In fact I prospered….even my High School English Teacher who was an old Spinster and my High School Math Teacher who was akin to a Three Dollar Bill used appellations that would trigger law suits today.
But….we all learned, we all were being prepared for the real world, and we were expected to perform…..and we did.
If you cannot make it through life being addressed by your Last Name…..without adjectives or modifiers….it is not society that is the problem.
This is just more runaway Loony Left Agenda being imposed under color of Law.
Almost every job I held in my career required Weekend Work, rotating or fixed shifts of all kinds of hours, work on Holidays…..working overtime and for On Call Standby status…..that comes with the job.
You ride for the Brand…..you ride for the Brand….as the Cowboys used to say.
Enough of this crap….if you suffer from Butt Hurt over such things you need to put your big Boy/Gril Breeches on and get. on with life.
Perfectly written Ralph
Would Madison, Adams, Jefferson, et al. imagine a nation under the Constitution in which the use of a student’s name, evidently the “official name,” in public school would be litigated in federal court?
No but when the Supreme Court introduced a balancing test for rights that were considered by our founders to be absolute and from God, it was only a matter of time before the country was lost. This a country who would be unrecognizable to its founders and the only way forward to restoring thise rights is receding from those well meaning but idiotic decisions.
I doubt they imagined much of what’s going on in America these days from doctors performing double mastectomies on teen girls who want to be boys (doesn’t seem the teen boys are doing the same with their inconvenient body parts) to babies being “aborted” in the birth canal and parents being demonized for wanting to protect the innocence and healthy of their children (who, according to Biden, no longer below to them) to journalists being threatened by a Delegate to Congress with prison time, to a whole litany of other bizarre practices advanced by a tyrannical minority. I’m trying to think of a mid-20th century dystopian novel that comes close to this insanity. Probably Miller’s allegory is the closest except now the conservatives are the ones being marginalized. Truth surely is getting to be more bizarre than fiction.
The constitution is a document that says what the Government can and cannot do. In general private citizens and business do not have the same constraints. We do not nor should have freedom of Speech, religion, privacy while on company time and or property. You accept a job with J corp. You are given the rules, pay rate, and work schedule before you start. 3 months later you become a Jew / Islamist or enter a same sex marriage. You want your employer to accommodate your new life choice, in violation of company policy. They say No. you use the law to beat your boss into submission. You are wrong and all the laws that support you are just as wrong.
Solver, I believe it is the schools that changed, not the employee. When the teacher was hired he was not told that he would have to call a boy “she” and he had no idea that such a massive shift in normalcy would be forced upon him.
Calling me Mr. Hullbobby would not seem to me to be offensive and in my day and age certainly would not have caused a disruption to my learning ability and/or my safety. We are killing our youth and our future.
That we are.
The case concerns a public school which is legally akin to Government. Therefore, the constraints apply. Of course, that leaves unsettled whether the accommodation should apply.
Are all these accommodations for what may be nothing more than rebellious kids going to be important when the bombs start falling and we’re at war with China? War does a great deal to alter society’s priorities and somehow I don’t think a 13-year-old’s preferred pronoun is going matter Jack doodoo (technical term).
“The constitution is a document that says what the Government can and cannot do.”
Brownsburg is a government school, which makes this case a violation of 1A.
We are talking about schools here – which ARE government.
While a school is both a government actor and an employer, when the issue is the free speech rights of adults,
the a schools role as government Trump’s its role as employer.
I would further note that your argument that we lose all these freedoms in the workplace would only be valid if Government was NOT constantly interfering in the workplace and in out private interactions with others.
I will be prefectly happy to accept your Workplace freedom’s argument, if and only if, I am free to hire and fire people based on race, sex, religion.
But the FACT is that I am not.
It is typical of leftists idiots to say that I MUST hire someone, or I can not fire them, because of their race, sex, religion, disability, age, …
And then decide but I CAN NOT accomidate the attributes like their religion that I was required to be blind to when hiring.
If you are going to claim that employement is different – that I can fire someone for their religious beleifs.
Then I can fire them because of their sexual beleifs, because of their race, age, disability, etc.
Either individuals acting outside of government have actual carte blanche to act based on whatever stupid claims they wish, or they do not.
You can not have it both ways.
I would further note that YOUR logic would legitimately allow a schools to say – Teachers will NOT use pronouns at all, or will only use those pronouns that match the students biologial sex, or that match their attire.
Compelled speech is a very dangerous road to go down.
All animals are equal,
Some animals are more equal than others.
George Orwell.