State Supreme Court weighs Madison schools’ gender policies

The Wisconsin Supreme Court heard oral arguments on Tuesday in a lawsuit over the Madison Metropolitan School District’s policy for students who wish to go by different pronouns than the ones they were assigned at birth. 

At issue is an MMSD policy instituted in 2018 that requires teachers and staff to call students by their preferred pronouns without informing the student’s parents. A group of parents, represented by the right-wing Wisconsin Institute for Law & Liberty (WILL) and the Arizona-based Alliance Defending Freedom, brought a lawsuit against the policy in February of 2020. 

WILL attorney Luke Berg said in the oral arguments that the district is conducting an “experiment” on the students without informing parents. 

“What we’re talking about here is a grand social experiment,” Berg said. “Never before on such a large scale have (schools) treated little girls as little boys. Parents have the right to decide if they want their children to be part of this experiment.”

In recent years, WILL — which has worked to influence the court by supporting conservative justice and by filing lawsuits to shape state law in areas as varied as elections and tax policy — has grown more hostile to transgender rights. 

Just this month, WILL has jumped into two fights over how transgender or gender non-conforming students are treated at school. 

The institute is defending three students in the Kiel School District who are facing a Title IX sexual harassment investigation because they refused to use a classmate’s preferred they/them pronouns. Title IX is a federal law that guarantees equal access to educational opportunities. A 2020 U.S. Supreme Court decision found that discrimination based on gender identity is a violation of the law. 

WILL has written a letter to the district requesting that the investigation be dropped, claiming that it’s the students’ constitutional right to call someone by the wrong pronouns. The organization has also attempted to attract national attention to the issue. 

On Wednesday, WILL wrote a separate letter to the state Department of Public Instruction (DPI) over its decision to look into revoking the license of a counselor in the Milwaukee Public School District for comments about gender identity she made at a rally in April. 

At the rally, the counselor, Marissa Darlingh, said she “oppose[s] gender ideology” and that young children shouldn’t be “exposed to the harms of gender identity ideology” or given “unfettered access to hormones — wrong-sex hormones — and surgery.” Later in her remarks, Darlingh said “f— transgenderism.” 

In the letter to DPI, WILL argued that Darlingh’s comments are protected speech under the First Amendment. 

In the oral arguments on Tuesday, an attorney for gender equity associations at three Madison high schools said the district policy on using pronouns was about protecting students’ privacy, not about keeping information from parents. 

“We’re talking about respecting a child’s privacy, not intervening in the home,” the attorney, Adam Prinson, said.

A few of the conservative justices on the court appeared to side with WILL’s arguments while the liberal justices focused on WILL’s decision to keep the parents bringing the lawsuit anonymous. WILL has said this decision was made to protect the parents from threats and harassment but that the district should trust that they are parents of MMSD students. 

“[The schools’ attorneys] have to accept your statement that they’re parents?” Justice Rebecca Dallet said. “How is the other side supposed to [counter] if they don’t even know who they are?”

Conservatives hold a 4-3 majority on the court, though Justice Brian Hagedorn sometimes acts as a swing vote. It’s unclear when a decision in the case will be made.