Public Schools, Transgender Rights and Religious Freedom

A high school teacher in Indiana objected on religious freedom grounds to a school policy requiring him to identify transgender students by their preferred names and pronouns. On Oct. 28, 2024, the Freedom Forum’s Committee on Religious Liberty hosted a conversation about the First Amendment issues at play in this case as a preview to the oral argument of this case in the United States Court of Appeals for the Seventh Circuit on Jan. 22, 2025.

Video transcript

Transcript of discussion, “Public Schools, Transgender Rights and Religious Freedom”

Case study:
John M. Kluge v. Brownsburg Community School Corporation. In advance of oral argument in the United States Court of Appeals for the Seventh Circuit

Moderator:
Charles Haynes, Freedom Forum Senior Fellow for Religious Liberty

Presenters:
Tyson Langhofer, Director of the Center for Academic Freedom at the Alliance Defending Freedom

Dan Mach, Director of the Program on Freedom of Religion and Belief, American Civil Liberties Union

Charles Haynes:

We have been interested in having this discussion for some time, and so I'm delighted that we are finally able to do it today, and we're going to leave time for you to chime in and ask your questions or give your comments because I know these are issues that we're going to talk about right now that are going to be with us now for a good while, and many of you will be involved in these issues in one way or another.

So we thought it'd be good to focus on a particular case with the understanding that we're trying to give you the picture of the landscape at the same time, and we have two outstanding people to help us do that. We are very fortunate to have Tyson Langhofer from the, well, he's Director of the Center for Academic Freedom at the Alliance Defending Freedom. Tyson's right here. And we're very grateful that he would agree to be here and talk about this case and these issues. And of course, our longtime committee member, Dan Mach, who is director of the ACLU Program on Freedom of Religion and Belief.

And I don't really have much to do up here, but I will start by giving you a sort of overview of the case.

Speaker 1:

I'm so sorry.

Charles Haynes:

Yes?

Speaker 1:

I don't think you're talking into the mic-

Dan Mach:

It's that.

Speaker 1:

So that we can hear, we can hear you, but-

Charles Haynes:

Yeah. I'll get... Yeah, thank you. That's good. I didn't realize how close one has to be. You have to be very close to the mic, very intimate with the mic. Okay.

So a summary, I didn't want to say too much because these guys are going to talk about the case, but I'll just say the Brownsburg Community School Corporation requires high school teachers to call all students by the names registered in the school's official student database. All right? So Kluge, is it pronounced Klu...

Tyson Langhofer:

Kluge.

Charles Haynes:

Kluge, Kluge. Okay, want to make sure. A music and orchestra teacher objected on religious grounds to using the first names of transgender students to the extent that he deemed those names not consistent with their sex recorded at birth, and the school district initially accommodated the teacher, and he requested that he call the students instead by their last names only, alright? So they tried that, and apparently the school got complaints from students and parents and they withdrew the accommodation.

How long did they do that for? It was about a year, almost a year?

Tyson Langhofer:

It was a year, yes.

Charles Haynes:

A year, a year of accommodation. And they, the school said, “It's apparent to us that allowing this accommodation was harming students and negatively impacting the learning environment of transgender students and other students, includes classes and the school generally,” and citing the... And the teacher, in response, after he had to leave the school because they refused to accommodate him, he cited Title VII of the Civil Rights Act of 1964, which all of you know, I think, and he brought a religious discrimination retaliation suit after he was terminated.

And the district court granted the school district summary judgment, concluding that the school was unable to accommodate Kluge's religious beliefs and practices, and this is the key part, without imposing an undue hardship on the school's conduct of its business, educating all students, and rejected Kluge's retaliation claim. And then on April 7th, 2023, the Seventh Circuit affirmed, saying that the undisputed evidence demonstrated that Kluge's accommodation harmed students and disrupted the learning environment.

Well, the Seventh Circuit then vacated its ruling and remanded the case to the lower court after the Supreme Court's decision in Groff v. DeJoy, which we've discussed here. And as you remember, it changed the standard for undue hardship from de minimis, meaning, I guess you could say, costs so small as to be insignificant or negligible, and they changed it to substantial increased costs. Quite a change.

So the Supreme Court instructed the lower court to determine whether there was undue hardship in light of this new standard. And on April 30th, 2024, the district court again ruled in favor of the school district. And so, it’s, now it's under appeal.

Tyson Langhofer:

It is.

Charles Haynes:

Yeah, and so I'm going to let you go first and talk about Mr. Kluge's position and what the issues surrounding it are.

Tyson Langhofer:

Sure. Thank you very much and thanks for having this discussion. It is, as Charles said, a very important discussion. It's not the only case going on around the country. We're litigating a number of these cases around the country in public schools. And so it's one that we're going to have to, you know, ultimately have a ruling on, both under Title VII and under the free exercise clauses and RFRA, the various state statutes and so forth.

So Charles gave a great summary there, but I'm going to highlight a few facts because I think it's important to kind of understand the entire context.

So John Kluge served as an orchestra teacher for four years at Brownsburg Community Schools. The district always gave him positive performance evaluations and he always met or exceeded its expectations. He really earned a reputation as a fun, engaging teacher who genuinely cared about his students and the orchestra won many awards under his tutelage.

Now, Kluge is a Christian. He believes that God created man and woman. He believes it would be sinful to encourage transgenderism in his students, and his sincerely held religious beliefs prevent him from participating in the social transition of his students through using names and pronouns that are inconsistent with a student's sex. Now, obviously, you all know that many times that names don't necessarily communicate what somebody's sex is, but most of the times what occurs in these situations is you have a student who comes in as, say, Jane, and then midway through the school year, transitions to John and communicating using that first name, John Kluge believes, that it would communicate that gender is fluid and that sex is not immutable, and that one can transition to a different sex by simply declaring that, and he believes that that would be sinful.

So in early 2017, the district of his school initiated a new transgender terminology rules stating that referring to transgender students by their biological sex would be punishable harassment. Mr. Kluge and three other teachers signed a letter explaining their religious beliefs and asking the students to keep using the students' legal names. Later that year in July, for the next school year, the district agreed to provide John an accommodation to allow him to use last names for all students. Okay? So he's going to treat all students the exact same.

He said, “Look, many coaches of athletic teams use last names for their students, and I want to do the same. We're an orchestra team, I'll do the same.” And the school agreed to allow him to use last names for all of his students, provided that if he was asked about why he was doing this, that he would just say, “Hey, we're a team and I'm going to, just like a sports team, you know, a coach refers to them with last names, that's what we're doing here.”

And that's what Mr. Kluge did. He began using the last names for all students and there was no real, no question. I think one student asked why and he told them, “Well, we're a team and this is why, this is why I'm doing this.” So for an entire semester, Mr. Kluge testified that the accommodation worked. There were no disturbances, there were no canceled classes, there were no student protests or written statements, no official ever suggested, during that time period, that the accommodation was not working.

In December of 2017, the principal came to Mr. Kluge and began pressuring him to resign. He said he was citing a few negative reactions to the accommodation that had been given to the advisor of the LGBT club, or which was the Equality Alliance Club on campus. And he cited some student conversations that he heard during those classes. Now, this was the first time that Mr. Kluge had heard any complaints about the practice. The principal never told him, you know, which students or parents had complained, and he hadn't sensed any difficulty. In January 2018, so that the winter semester the district announced their new policy and they finally issued a written policy called Transgender Questions. And it provided specifically that no accommodation would be allowed, and it specifically cited the accommodation they were giving Mr. Kluge and said that that would no longer be carried on, and that they only, they quoted this, they're “only willing to accommodate people who follow the policies.”

So Mr. Kluge began talking with them, asking if they would give him an accommodation, continue the accommodation. They indicated he would not, so he was forced to submit... They said, “You have to comply, resign, or be fired,” and he ended up resigning at the end of the 2018 school year, and then he filed suit.

As Charles indicated, Mr. Kluge filed suit under a number of different claims. The district court dismissed on a motion to dismiss all of the claims except for the Title VII accommodation claims and the retaliation claims. So the two pending claims that went on to be determined by the district court were the Title VII retaliation and accommodation claims. The district court ruled in favor of the school district in both cases under the previous Title VII accommodation standard, which was de minimis cost. This district court – I'm sorry - The school district, the only interest cited by the school district was that they had student complaints. They had student and parent complaints, and they only cited, I think there were two students and maybe four parents, something like that. And they didn't cite any additional cost. In the record, there was no, they didn't say that there was some administrative burden. It was these student complaints.

So we appealed it – so we were not counsel at the district court. We became counsel at the Seventh Circuit. We took it to the Seventh Circuit. The Seventh Circuit ruled, affirmed the district court. But in the meantime, before the mandate was issued, Groff came down, new Title VII standard for accommodation was issued by the Supreme Court, and so the Seventh Circuit remanded, sent it back, and the district court granted summary judgment again under the new standard to the district.

So now we'll talk specifically. And now, there was no... The district court – the school district admits that Mr. Kluge established a prima facie case of Title VII discrimination, and the court affirmed that. So the only issue is whether the accommodation being requested by Mr. Kluge imposed a substantial burden on the school. And the school, it brought forth two burdens that it said it would have if it gave an accommodation to Mr. Kluge.

First was harm to students. What the district's position is that they have a, their business... So you have to analyze substantial cost, under Groff, in relation to the business of the business or the company who the accommodation is being imposed upon. And they said that their business is, “To educate all students, which it achieves by fostering a learning environment of respect and affirmation.” And then they also said that they were concerned about substantial risk of litigation under Title IX, that they're saying that they feared that they would be sued by or a Title IX claim would be brought by one of the students.

And the district court analyzed Groff, and they said that as a matter of law, under Groff, it's sufficient to demonstrate undue hardship because if the district cannot meet the needs of all students, it is incurring substantially increased cost to its mission to provide education that is equally open to all. That, so as a matter of law, that's what the district court ruled. And it also said that there would also be a substantial risk of litigation for the school district.

Now, so I'll just give a little bit of commentary on that, you know, our position on that. If you take the district court's opinion at its word, that only one complaint, because this is actually the position that the district takes at the Seventh Circuit, is if you have one complaint from a student, that student is being deprived of an educational benefit because they're not feeling welcome there, and therefore that harms their interest sufficiently because they cannot educate all students to the standard that they set.
Therefore, they could deny any accommodation to any teacher based upon that one complaint. And that's essentially what the district court has ruled here. And that would really eviscerate Title VII accommodations for teachers.

We can imagine all number of situations where we have teachers who hold religious beliefs that are different than the religious beliefs or no religious beliefs of other students, and there's all kinds of situations where if, say, somebody, a Muslim woman, wanted to wear a headscarf or something like that, and a student objected, felt uncomfortable with that because maybe they're Jewish and they have family in Israel and there's this ongoing conflict, and they're saying that that would be sufficient essentially to deny an accommodation because of the complaints.

And what's really important is Groff takes off the table, it literally says, “It's off the table,” are employee complaints. Employee complaints about the religious accommodation are off the table. Yet here, what the district court did was it relied solely on complaints, a few complaints of other people objecting to the religious beliefs of this individual. Now, Mr. Kluge, it's really important to understand, he treated all students the same, literally used the last names for everybody, didn't tell them why he was doing it, simply did that. And they're saying, “Treatment of all students is not okay. We're not going to give you that accommodation, if anybody complains,” solely because they know, and the student said this, “Well, we knew why he was doing it, not that he treated us differently, but we knew why he was doing that.” And that's literally what Groff was trying to eliminate was that type of religious animus towards an accommodation granted to a religious person.

So our position would be that the district court was wrong under Groff because it did not impose this. It required the school district to demonstrate a substantial increase in cost and it relied solely upon complaints about Mr. Kluge's religious beliefs.

Charles Haynes:

Thank you very much.

Tyson Langhofer:

Sorry, January 22nd is the oral argument is when it's set.

Charles Haynes:

Okay, great. I'm not sure. I've got this very close. Can you hear me? Can you hear me, Dan?

So we'll turn to Dan now for - to talk about the school district's position.

Dan Mach:

Hi, everyone. I want to just start by explaining very briefly where I'm coming from on this. We do not represent the school district. First of all, can everyone hear? Am I close enough? Okay, thanks. We - my colleagues filed an amicus brief in support of the school in the earlier rounds. I personally actually was not on that brief, but so we are not the school, so I have not the same intimate familiarity with the facts, although I'm very familiar with the case.

So, and just another word about where I'm coming from, we at the ACLU support the right of religious exercise, including the right to get exemptions and including the right provided by Title VII to get a religious accommodation for employees at work. That's very important. I just want to make sure that that is clear.

Where we differ here is how we look at requested accommodations. And for us, I'm going to oversimplify, but for us, one of the main issues is, is the accommodation harming others? Is the accommodation harming the business and others, whether it's customers, or in this case, students? And we heard about the context here. Yes, Title VII is about employees. So in that sense, it is about the workplace and it's just about businesses. But in this case, we're talking about schools, and that is a very special type of employee-employer relationship. And this is not just schools, but public schools. That has to be factored into the analysis here. We have to keep in mind, what is the point of the public school? Why do we have public schools? And what is the role of public school teachers vis-a-vis their students?

And you know, the school, you've heard some of this, the school has explained what its mission is and how that mission, that educational mission as a public school is being harmed, and I just want to focus on that briefly. You know, they talk about how this accommodation, which initially they granted, but then they saw how it was operating, they found that there was diminished self-esteem. There was a heightened exposure to bullying when trans students are not treated with dignity and respect, and there's important mental health component to this. And the teacher conceded that the school, obviously, I think we would all concede, has an interest in protecting students' mental health. And schools have an obligation. Public schools have an obligation to afford students' dignity and to show them empathy.

Now, that's, I think, the background here, so then what happened? The school had this accommodation. They had another accommodation as well. This teacher objected to handing out uniforms, gendered uniforms. So the school gave an accommodation there too, this is the band uniforms, saying, “All right, someone else can do that.” The school has not rescinded that accommodation at all. So to the extent that there is a concern here that the school is somehow being anti-religious, they actually kept that accommodation in place.

But then they got complaints and they heard from parents, they heard from students, they heard from other faculty that this was causing problems. And he can say all he wants that, “I'm not going to explain why I did this to the public,” but as you heard, everyone knew exactly why this accommodation was happening. Everyone knew, all the students, the trans students and their classmates knew that this was specifically because there was a refusal to refer to students in accordance with their gender identity. And the students complained. They felt isolated, they felt targeted. Other students were asking them, “Hey, why is this going on? Why, is he doing this because of you guys?”

Now, this created an awkward classroom environment. The department heads also got complaints. The performing arts department heads also got complaints, and there was tension in the school and it was affecting the overall functioning of the performing arts department and of the school in general.

And one thing to keep in mind here is that we've talked about what the new standard is under Title VII. The question is, does that undue hardship standard factor in non-economic costs? And the answer is clearly yes, and I don't think ADF contests this point. In fact, in the litigation, this was clearly a concession, I think, as it must be. So then the question is, all right, well, how much non-economic harm is enough to create an undue hardship? And there, I would refer back to the fact that we're talking about a public school, and public school students, and the very special obligation that public schools have to their students.

Now, as for disruptions, we heard, “Oh, this is only a couple of complaints.” So the district court found that not only were there disruptions, but that the teacher himself was encouraged by these disruptions. Okay? Just keep that in mind. Now, he disputes this, and I'm sure you will hear the opposing view on this, and this is what the district court found though. He said that after, far from resigning, after the complaints, he was encouraged all the more to stay at the school. He said that the persecution that he felt was a sign that it was working, that his faith, as witnessed by using last names only, was being effective. Okay? The disruption showed him that his objection here was effective.

Now, and you can see this sort of tone throughout, not only in what he said at the time, but actually in the briefing in this case. His objections are referred to as important, deeply rooted, sincerely held beliefs, that his conscience forbids him from treating these students with the dignity and respect that they're insisting on. But their complaints were just gripes, a few grumblings, a few trifling, biased complaints.
These are the words that are used to describe those complaints. So far from trying to tamp down on the controversy, he was encouraged by it. And the school, responding to these complaints, rescinded the accommodation.

Now, you've heard that this is anti-religion, that the school is somehow being hostile to his faith, and that it is true that the Supreme Court in Groff made clear that –what is - there are some types of harm that can be considered in the undue hardship analysis and some types that can't. And among the types of harm that cannot be considered are complaints by other fellow employees, say, who don't like the fact that Employee A over there is getting an accommodation. “Why does he get an accommodation but Employee B doesn't get an accommodation?” That complaint alone is not enough and should not be enough, in my view, to create an undue hardship. Nor should it be enough to say, “Oh, I don't like his religion,” or, “I don't like the fact that he's doing that because he's showing his faith and his faith bothers me.”

Those can give rise to an inference of anti-religious hostility, but that is very different from a complaint about discriminatory conduct. The complaint about discriminatory conduct is not, “I don't like his religion,” it's, “I don't like his discrimination.” And whether or not he chose to refuse to refer to students by their names, names that they could only put in the school registry after both their parents and healthcare providers agreed with, it is something more, that the objection here is not... You know, the objection would've been the same, and the school's response to that objection would've been the same whether or not he was coming to this position from a religious perspective or from a non-religious perspective.

There are many folks out there who share these views and don't back it up with the same religious conviction that he has. The school would've responded the same way. It's not the fact that it was religious, it's the fact that it was discriminatory and created an environment that was not conducive to learning and that threatened the well-being of students in the school.

So I'll stop there.

Charles Haynes:

Well, thank you, Dan. Tyson, before we go to the audience, I think you might have some response to some of the things Dan was talking about, and then you might have some things as well.

Tyson Langhofer:

Sure. I just want to... there's a couple points. One, it cannot be discrimination when you're treating everyone the same. There is no dispute that Mr. Kluge was treating everyone the same. In fact, he changed his practice to accommodate students. His normal practice wouldn't have been to use last names, but he did it to accommodate students so that everyone was treated the same. That cannot be discrimination. The students may not have chosen the same thing. They may not have liked it, but it wasn't discrimination. And if you read the comments, and you can go read the briefing, you read the comments, there was clearly religious animus. This was not about, “Oh, I don't like that he got this accommodation.” There was clear religious animus there.

I think it's also really important to understand in every one of these cases, and this isn't highlighted a ton in the Kluge case, but it is present there and is present in every one of these other cases, when they, when schools allow students to use preferred names, they almost never change... These are not legal name changes. They're just requests and they're like notes put in there. The legal name's still in there. And the vast majority of the time, these students, their legal name is their email address. They get emails with their legal name from their school to them. They have to sign in using that legal name. That's on their diploma. It's used in multiple situations because it's required by state law.

So these students are exposed to their legal name on a regular basis by the school, and yet they're telling Mr. Kluge in this one instance, “If you avoid using it, not use it, but if you avoid using it, and this person knows that it's because of your religious beliefs about this, that somehow that's discriminatory and going to be harmful.”

That cannot be the case. If it was the case, the schools would eliminate and erase all of their references to their legal names. But they don't do that. They maintain many, many policies in which they use the legal name of these students, but yet they're trying to force teachers who have legitimate religious objections who just want to avoid the issue. He didn't want to make a comment on it. He was not trying to make a comment on this. He did not... When he said, “I am encouraged by this,” he's not saying, “I was trying to engage with the students.” As a Christian, when you understand, when you exercise your faith, and you know, we believe that if we receive persecution for that faith, that that's consistent with the Bible because the Bible indicated that if you live out your faith, there will be persecution.

And so that's what he meant by that – he didn’t, there was no indication in any way that he tried to impose his beliefs or do anything to any of these students. He simply wanted to live consistently with his faith and teach orchestra. That's what he wanted to do. And he was denied that and the school wasn't able to meet the standard under Groff.

Charles Haynes:

Thanks, Tyson. Dan, do you want to respond to that before we go to the audience?

Dan Mach:

Yeah, sure. One thing about the, “He was treating everyone equally,” first of all, this was a policy that only this teacher applied, only in his class. No other teacher did and everyone knew. This is just a matter of fact. Everyone knew why. So there's no hiding the ball here. There's no, “I've just decided today to treat this class as a team, just like coaches do.” That just flies in the face of reality. Everyone knows exactly what was happening there.

And as for the practical effect of supposedly treating everyone in his class equally, I want to draw some sort of analogy to a relatively recent Supreme Court case, the Espinoza case. That was one of a series of cases in which the Supreme Court was addressing, I know many of you know this, but for those who don't, was addressing the question of when the government is obligated to provide equal funding to religious recipients. And in that case, there was a scholarship program in the state of Montana that was providing scholarships in a way that would've operated to violate the state law, the state constitutional prohibition on funding religious institutions. So like many states, Montana has a no-aid provision, which prevents the funding – the funneling of taxpayer dollars to religious institutions.

And so the Montana court said, “Well, we want to get out of this business. We don't want to violate our own state constitution. We also want to make sure we don't violate the federal Constitution by discriminating against certain recipients based on their religious identity. So what we're going to do is we're going to invalidate the entire program.” Okay? And so the Montana Supreme Court invalidated the entire program. They said, “No one gets scholarships under this program.”

The US Supreme Court, nonetheless, stepped in, even though every school in that case, so you see the analogy here, just like every student in this class, every school in that case, every student in that case was being treated equally. The US Supreme Court said, “Well, we don't care that there's facial equality on the back end because we want to look at how we got there. And we, the US Supreme Court, don't like the reasoning for how Montana got there to invalidate the whole program.” And so they said that that was unconstitutional religious hostility.

And it's obviously there are many differences between that case and this one, but I just want to point out that fairly recently, the US Supreme Court cared very much about the manner in which supposedly facial equality was achieved.