Kettle Moraine School District Loses Lawsuit, Ordered to Obtain Parental Permission for Students’ Social Gender Transition

October 4, 2023
Photo via Adobe KMSD loses lawsuit over student pronouns

In a precedent-setting case, Circuit Court Judge Michael P. Maxwell in Waukesha determined that the nationwide debate about students’ gender pronouns is, in the case brought against Kettle Moraine School District (KMSD), about the parental role in a child’s medical decisions. According to the judge’s ruling, KMSD and its schools are now, “enjoined from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent.”

The ruling stated, “Kettle Moraine School District’s policy to enable and affirm a minor student’s transition to a different gender identity at school without parental consent violates parents’ constitutional right to determine the appropriate medical and healthcare for their children.” Importantly, the ruling noted expert testimony from the plaintiffs demonstrating that social transitioning by changing an individual’s name and pronouns is called social transitioning and is an important step in the physical gender transition process that is fraught with mental health implications for the child.

This case is primarily focused on the parents of one 12-year-old girl who had obtained mental health treatment for the child when she began experiencing gender dysphoria and initially focused on affirming the child’s new male identity. However, when they changed course and requested that the child be referred to by her legal name and female pronouns, KMSD refused to comply and instead went along with the child’s wishes to continue with a male identity. The child was subsequently moved to another school and decided to revert back to her female identity, according to the court ruling. 

These parents and the parents of another child were the plaintiffs in the case, represented by the Wisconsin Institute of Law and Liberty and the Alliance Defending Freedom.

According to the ruling, KMSD’s attorneys argued the right at issue in this case is whether parents can control the education a school provides and cited case law from other states ruling that they cannot. Judge Maxwell determined that this case was not about controlling educational decisions, but rather, it was based on parental control of medical decisions. He stated that this is a different legal strategy by the plaintiffs than in the precedents KMSD was relying upon. 

Maxwell stated, “Perhaps the District could introduce clear and convincing evidence in order to supplant a parent’s medical judgement, but they certainly cannot do so on a whim in the manner they did, and they have put forth no evidence – let alone clear and convincing evidence in the case.” 

According to the court ruling, the school district also argued that their decisions were made due to concern that they may be in violation of Title IX if they had not followed the child’s wishes. They relied upon a “Dear Colleague letter regarding Transgender Students” from the U.S. Department of Education that was rescinded due, in part, to a federal district court in Texas that enjoined the letter in 2016 and said it violated the law. Maxwell, therefore, determined the Title IX issue to be irrelevant to the case.

Maxwell’s ruling criticized the Kettle Moraine School Board stating, “Rather than doing what the voters have elected them to do, the Kettle Moraine School Board abrogated their responsibility to either pass judgment on a policy regarding these serious issues or to affirm the actions of their employee, the superintendent,” who ultimately made the decision to disregard the parents’ wishes. He continued, “Instead, the School District has hidden behind claims of no parental right or unfounded Title IX issues rather than give parents in their district what they deserve – clear guidance on how the district intends to handle these controversial issues.”

Maxwell concluded, “The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents’ wishes is not permissible and violates fundamental parental rights.”

The lawsuit was filed on November 17, 2021, and the judge’s comments were directed to the individuals involved and the board members at the time of the incident in 2021. Since then, several Kettle Moraine School Board members lost their 2022 elections and were replaced, and the superintendent and principal involved in the case have retired.

Both the current Kettle Moraine School Board President, Carl Millard, and current KMSD Superintendent Steve Plum have stated that they intend to honor the court ruling, which indicates they do not intend to appeal. The KMSD policy on gender pronouns and parental rights will be on the school board’s agenda for their October 24 meeting.

Millard stated, “Parents, not the state, are the primary caregivers, teachers, and decision-makers in a child’s life. The recent decision by Judge Maxwell in T.F., et al, vs. Kettle Moraine School District recognizes this truth. With more than half of the board changing over the past three years, prior board actions do not reflect current board consensus. The Kettle Moraine School Board looks forward to devising policy language affirming parental rights and will work with the Administration on instilling operational processes that provide clear guidance for staff.”

The Wisconsin Institute of Law and Liberty stated on its website, “Although there are numerous school districts with similar policies and other cases challenging those policies, this is the first case where a court has ruled on the merits in favor of parents over a school district. Thus, the case sets an important precedent that will help other parents defend their rights, both in Wisconsin and across the country.

Editor: This story was updated October 5, 2023, to include comments from the KMSD school board president and superintendent.