KIEL (NBC 26) — The families of three eighth grade boys at Kiel Middle School are demanding that the school district drop a Title IX investigation against their children. The parents claim the students are being investigated for sexual harassment for using the incorrect pronouns to refer to a student who prefers they/them pronouns.
Rosemary Rabidoux, whose son Braden is one of the students under investigation, says that on April 25th she received a call from Chad Ramminger, the principal of Zielanis Elementary School, who first told her that her son was being investigated.
"I received a phone call from Mr. Ramminger letting me know I was going to be receiving an email with charges against my son for sexual harassment," Rabidoux said. "I was just in shock."
When the school walked her through the Title IX complaint, Rabidoux claims she was told the report had come from a music teacher. The teacher reported multiple instances where they claimed her son had been harassing the student that uses they/them pronouns. She says in one instance, the teacher reported her son had defended another student for refusing to use the preferred pronouns.
“Braden stood up and said ‘he doesn’t have to use pronouns, it’s his right, it’s his constitutional right, to not use pronouns'," Rabidoux said. "That's what Braden was in trouble for, for standing up for his friend."
The parents reached out to the Wisconsin Institute for Law and Liberty, a non-profit conservative law firm, who wrote a letter to the school demanding that the investigation be dropped and argued that what the students had been accused of did not constitute a Title IX violation.
“We’re asking the school to immediately dismiss the complaint and remove this from the students' records and also make clear to their staff and to students that they can’t be forced to use another student’s pronouns," said Luke Berg, deputy council with the Wisconsin Institute for Law and Liberty.
Lora Zimmer, a Title IX investigator with McCarty Law Firm in Appleton, says that discrimination based on gender identity has been ruled as a violation of Title IX.
"As of 2020, the Supreme Court in Bostock vs. Clayton County held that discrimination based on sexual orientation or gender identity is inherently discrimination based on sex, that you cannot separate the two," Zimmer said.
However, she says whether or not refusing to use someone’s preferred pronouns counts as discrimination is still a gray area.
“There has not been guidance from the Department of Education saying one way or the other on that, generally the courts have come down generally saying that that can be free speech that’s protected," Zimmer said.
Ultimately, each school district typically has its own Title IX policy and Zimmer says it's up to the school to decide whether or not using the incorrect pronouns could fall under harassment or if it violates their policy.
"If it’s in the context of harassment and maybe broader than just the use of the pronouns, then it could possibly fit within a policy depending on what that policy says,” Zimmer said.
The Kiel School District did not provide a comment to NBC 26. Berg says that the district still has not responded to their letter, but did release this letter to parents regarding the investigation:
I hope you are doing well tonight.
Recently you may have noticed media attention regarding the District's investigation of a Title IX complaint. While the media has sought comment from the District, we are prohibited by state and federal law from discussing individual student matters.
However, tonight I am writing to you, as members of our school community, to provide information about the District's legal obligation to investigate complaints of unlawful harassment.
Under federal law, when the District receives a report of harassment based on sex, including gender identity, the District is obligated to act. Specifically, the District must reach out to the individual allegedly harassed, offer supportive services, and provide information about Title IX. If the individual files a formal compliant of sexual harassment or if the District Title IX coordinator files a complaint on their behalf, the District must initiate the Title IX grievance process, which includes a fact finding investigation, a determination as to whether the conduct occurred and constituted sexual harassment, and a right to appeal.
During this process, the individuals alleged to have engaged in the harassment must be presumed not responsible until a determination is made at the end of the process. Further, the district may not issue sanctions until the process is complete.
As a public school district, we are bound to follow all state and federal laws regarding bullying and harassment. We have and will continue to comply with these obligations.
Once again, while we can not discuss a specific student matter, I wanted you to have some additional information about the District's responsibility under the law.
Thank you so much and take care,