400+ Wisconsin schools are on Moms for Liberty's membership list. What it means for LGBTQ+ kids

Kettle Moraine School District parent Christy DeMaster has long advocated for her child, who is transgender, as well as other LGBTQ+ students.

Now, as Moms for Liberty urges parents to take action so their schools are excluded from new federal regulations protecting transgender students, DeMaster said she's relieved her child will graduate soon.

Kettle Moraine is now one of hundreds of Wisconsin school districts, including Waukesha, Muskego-Norway and Kenosha, on the far-right group's membership list, assembled as part of a federal lawsuit over the new regulations.

As the list grows, DeMaster said people have questions about what it truly means.

And DeMaster was particularly alarmed when she saw a Kettle Moraine school board member's post on Facebook that encouraged parents to join.

"The question at this point that I have, and we haven't gotten answers to yet, is, what does this mean for our school district, that we have some schools that are on the list and others that are not?" said DeMaster.

Here's what legal experts told Public Investigator about the Moms for Liberty list, and what it means if your school is on it.

What is Moms for Liberty?

Self-described parental rights group Moms for Liberty calls for restrictions on how race, gender and sexuality are addressed in schools. The group advocates for book bans and an end to gender-affirming care, which is backed by leading medical groups.

Moms for Liberty has recently gained traction nationally and statewide, with its members appearing at high-profile events like the Republican National Convention.

Last year, the Southern Poverty Law Center labeled Moms for Liberty an extremist group.

Why is Moms for Liberty forming this list?

Signed into law in 1972, Title IX bans discrimination against students and staff in federally funded education programs on the basis of sex. However, it was unclear whether the regulations applied to people who are transgender and gender-nonconforming.

Earlier this year, the Biden administration updated the Title IX regulations to clarify that discrimination based on gender identity and sexual orientation is also banned.

Moms for Liberty sued over the new rules. The judge in the case ordered a preliminary injunction, which temporarily blocks the federal government from enforcing the new Title IX rules in schools that enroll children of Moms for Liberty members.

Now, Moms for Liberty is encouraging parents across the country to become members to expand the list of schools that don't have to enforce the new protections while the lawsuit plays out.

What is Moms for Liberty claiming in its lawsuit?

Moms for Liberty co-founder Tiffany Justice told Public Investigator the group believes the Title IX revisions unconstitutionally alter the definition of sex by including gender identity.

Justice said the new regulations also violate parents' and students' First Amendment rights by requiring them to use someone's preferred pronouns.

She also believes the new regulations open the door to boys joining girls' sports teams or entering girls' locker rooms — fears that have been challenged by a range of medical experts and researchers.

However, civil rights attorney Alexa Milton disagreed with the group's argument that the new regulations are unconstitutional. Past court rulings have upheld that Title IX's sex discrimination regulations include gender identity, she said.

More: Suburban Milwaukee schools are discussing transgender youth. Here's what you need to know.

What does it really mean if your school is on the list?

Wisconsin school districts must still comply with Title IX, whether they're on the list or not.

That's because the Seventh Circuit Court of Appeals, which covers Wisconsin, Illinois and Indiana, has already upheld the protections provided by Title IX.

One of these rulings was the landmark federal lawsuit brought by a transgender student against the Kenosha Unified School District in 2016. Milton served as one of the teen's attorneys.

The student, Ashton Whitaker, sued the district after it banned him from using the boys' restrooms and referred to him by female pronouns. The court decided in Whitaker's favor in 2017, ruling that Title IX protects transgender students from discrimination.

"The courts have actually already held that what Moms for Liberty wants schools to do is what's unconstitutional," said Milton.

However, the injunction does block the U.S. Department of Education from enforcing the new Title IX regulations.

According to U.S. District Judge John Broomes' order, the injunction applies to individual schools attended by children of Moms for Liberty members.

That means, while the lawsuit is ongoing, transgender students enrolled in schools on the Moms for Liberty list can no longer get their complaint investigated and enforced by the U.S. Department of Education.

Instead, they would have to pursue their complaints through the courts.

"The protections for students under Title IX have not evaporated just because of this injunction," said civil rights attorney Joe Wardenski. "It just means that they have fewer enforcement mechanisms available right now."

Wardenski represents a transgender eighth-grade student who sued the Elkhorn Area School District this year after she was barred from using the girls' bathroom. This month, U.S. District Judge J.P. Stadtmueller ordered Elkhorn to allow her to use the girls' bathroom while the lawsuit awaits a final ruling.

It's unfortunate many students have lost the ability to use the Department of Education's free complaint process, Wardenski said — a system that also relieves students of the burden of having to be a plaintiff in a federal lawsuit.

How common is this type of injunction?

It's common for federal regulations to be challenged, Wardenski said, but this injunction is "very unusual."

It's strange that someone can't have their complaint investigated by the Department of Education solely because Moms for Liberty said some of its members have a child in their school, he said.

How can I find which schools are on the list?

There are over 400 Wisconsin schools on the list. They are listed in the court case documents posted online by Moms for Liberty.

What will happen next?

The injunction is under appeal in the 10th U.S. Circuit Court of Appeals.

Justice, the Moms for Liberty co-founder, said she has no doubt their lawsuit will make its way to the U.S. Supreme Court, where she believes the court "will rule on the side of parents," or agree that the expanded regulations are unconstitutional.

As other courts issue similar temporary injunctions regarding Title IX, Milton said "there's a lot going on" that makes it hard to predict what will happen next.

Either way, none of the injunctions negate the protections provided by Title IX, she said.

Quinn Clark is a Public Investigator reporter. She can be emailed at [email protected]. Follow her on Twitter at @Quinn_A_Clark.

This article originally appeared on Milwaukee Journal Sentinel: LGBTQ+ protections partially blocked at 400+ Wisconsin schools