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DOJ Says Christian Teacher Must Use Students’ Preferred Pronouns

Jan. 20, 2022, 5:02 PM

A Christian teacher in Indiana was properly denied a religious accommodation from his school’s transgender name-and-pronoun-use policy, the Biden administration told a federal appeals court in Chicago Thursday.

John Kluge’s practice of just calling students by their last names caused harm to students individually and to Brownsburg Community School Corp. on an institutional level, Justice Department attorney Jason Lee said. The evidence of that was clear in the court below, he said.

The harm to two transgender students in Kluge’s music and orchestra class was personal, educational, and social, Lee said. And all students were made to feel uncomfortable by Kluge’s practice.

That interfered with the school’s educational mission, Lee said.

Kluge lost his job at Brownsburg High School following the 2017-2018 school year. That came after the school district rescinded an accommodation that had permitted him to refer to all students just by their last names so he could avoid “affirming transgenderism,” as he says is required by his deep faith.

Kluge was thereafter required to use the student names and pronouns registered in a new database, which allowed students to change those designations with the approval of a parent and a health-care professional, the school district said.

Kluge’s resignation after he refused to comply didn’t violate the religious accommodation provisions of Title VII of the 1964 Civil Rights Act, the DOJ told a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

Permitting Kluge to continue deviating from the policy would have imposed an undue hardship on the school district, the DOJ said.

“If adverse effects on a business’s employees and customers can constitute undue hardship,” so can harm to students, especially high school students “legally required to attend school,” the DOJ said in an amicus brief filed in advance of oral argument.

The U.S. District Court for the Southern District of Indiana’s July 12 ruling likewise properly found the risk that Brownsburg might be sued or lose its federal funding for failing to protect the anti-discrimination rights of transgender students also posed an undue hardship, the DOJ said.

Evidence of the harm transgender students say Kluge’s use of last names only caused them “could have provided a factual basis for a Title IX claim” against Brownsburg, according to the agency’s brief.

‘Heckler’s Veto’

But Kluge’s attorney Rory T. Gray told the Seventh Circuit it risks creating a circuit split if it holds that anything students find irritating or unwelcome rises to the level of undue hardship under Title VII’s religious accommodation test.

The lower court’s ruling amounts to a “heckler’s veto” of his workplace religious rights under Title VII, Kluge said in his opening brief on appeal.

“Religion often evokes strong feelings, which is why Congress ensured that employers” can’t make a worker’s religious practice a factor in an employment decision, Kluge said, citing a 2015 U.S. Supreme Court ruling.

It was months before “a handful of teachers and students grumbled” about his use of last names only, he said.

Feelings of unhappiness or offense are part of the educational process during which students encounter ideas that they may not agree with, Gray said.

The court shouldn’t treat Kluge’s situation different from a teacher unwilling to openly affirm a student’s religious beliefs, he said. Gray is with the Alliance Defending Freedom in Lawrenceville, Ga.

“If avoiding undue hardship means finding a religious accommodation to which no one will object, few—if any—accommodations will survive” and the nondiscrimination mandate of Title VII “will be eviscerated,” according to Kluge’s brief.

The Sixth and Ninth circuits, for that reason, have ruled that complaints by third parties don’t create an undue hardship, the briefsaid.

Kluge did everything he could to remain neutral, and he didn’t criticize any student’s point of view or push his beliefs on any student, Gray said.

And the possibility that he opened the district up to Title IX lawsuits is based on a hypothetical scenario, Kluge’s brief said.

Any such lawsuit “would have been frivolous” because he didn’t berate or harass anyone, it said.

John J. Bursch of Alliance Defending Freedom in Washington and Michael J. Cork of Indianapolis also represent Kluge. Brent R. Borg of Church Church Hittle & Antrim in Fishers, Ind., argued for the school district. Alexander P. Pinegar of Church Church Hittle in Noblesville, Ind., also represents the school district.

The case is Kluge v. Brownsburg Cmty. Sch. Corp., 7th Cir., No. 21-2475, oral argument 1/20/22.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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