Title IX in Middle School and pronouns

Sexual harassment, as defined in both Title IX and the Kiel Area School District’s policy, typically covers things like rape, sexual assault, dating violence, stalking, inappropriate touching, and quid pro quo sexual favors. None of that—or anything even close to it—is alleged in the complaint. While there is a catchall for “unwelcome conduct” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education,” the mere use of a biologically correct pronoun, without significantly more, does not count, and if it did, it would violate the First Amendment. Schools of course can and should deal with teasing and bullying, but using so-called “incorrect pronouns” alone is not punishable, without more.

Further, the District has also failed to follow Title IX procedures and its own process. Both the District’s policy and Title IX regulations require notice of the allegations before beginning any investigation so that the accused has “sufficient time to prepare a response before any initial interview.” The District failed to provide a detailed notice of the allegations, instead providing only a generic letter, one day before the District sought to question the minor students, stating that the boys were accused of “using incorrect pronouns.” The District initiated its investigation and conducted interviews without first providing additional details or giving the boys and their families time to prepare.