The conservative legal group’s battle with the Madison school district puts it in league with some of the most virulently anti-LGBT forces on the right.
Illustration by Rachal Duggan.
The Wisconsin Institute for Law and Liberty (WILL) recently made good on its months-long threat to litigate over a Madison Metropolitan School District (MMSD) policy on gender and inclusion, filing suit against the Madison schools on Tuesday, February 18.
The guidance in question—a single clause in a 35 page document on educational support for trans and gender-nonconforming students in the K-12 system—stipulates that “staff shall not disclose any information that may reveal a student’s gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure.”
WILL, the right-wing think tank and legal outfit that has pushed for the purge of over 200,000 voters from Wisconsin’s voter rolls, litigated in defense of Act 10, and has defended the state’s Republican gerrymander, argues that the district’s policy could have the effect of “[deceiving] parents by using different names and pronouns around parents than at school” and violates “parents’ constitutional right to direct the upbringing of their children.”
WILL’s legal complaint is predicated on the assumption of gender as an immutable biological function, synonymous with sex, which the organization also defines as split evenly between “male” and “female.” The authors of the complaint describe departures from the gender binary exclusively in terms of transition and dysphoria; to adopt a nickname or new pronouns are characterized as first steps in a “social transition,” and the authors contend, in an explicit bid for the use of conversion therapy, that parents might instead turn to “psychotherapy to help a child identify and address the underlying causes of the dysphoria and so return to comfortable identification with his or her biological sex.”
Parallels between the language in the WILL lawsuit and anti-gay backlashes of the early 2000s are evident.
“This is not about parental rights, like WILL is saying it is,” says Maggie Di Sanza, a student leader from Memorial High School’s Gender Equity Association. “It’s about repressing trans people, and trans students in particular.”
“[MMSD] is meant to create a safe and inclusive environment for youth to learn. And we are their first priority,” adds Amira Pierotti, also of the Gender Equity Association. “We don’t want to cut families from the picture. [WILL] is coming …with all this anger and rage, and we just want to make an inclusive environment. But we live in a transphobic world.”
Di Sanza, Pierotti, and Gender Equity Association leader Melanie Golden have denounced the WILL lawsuit within Memorial High School, offering support to affected students and preparing a visual campaign in solidarity with their trans and nonbinary peers.
Ali Muldrow, school board member and co-director of the LGBTQ education organization GSAFE, says that the guidance does not deceive or hide information from parents, and comprises a small part of a broader effort to encourage all kinds of self-expression in schools.
“If a student comes to school and says ‘I’d rather go by “Tim” instead of “Timothy,”’ a teacher would say ‘that’s fine,’” Muldrow explains. “If a student says, ‘Hey I’d prefer “Tiffany” instead of “Devin,”’ a teacher might [also] say that’s totally okay…if students feel safe and supported at home, that is a benefit to everybody and so we encourage families to talk to their kids, and we encourage kids to talk to their families.”
The lawsuit comes months after the conservative organization first circulated a letter, penned by WILL attorney and former Wisconsin Assistant Attorney General Luke Berg, seeking parent plaintiffs for the case. The plaintiffs, 14 anonymous parents from nine families with children in the MMSD schools, are represented by WILL attorneys Luke Berg and Rick Esenberg, as well as Roger G. Brooks, an attorney from the Alliance Defending Freedom (ADF), a conservative organization that the Southern Poverty Law Center (SPLC) considers a hate group.
ADF, which nets approximately $50 million per year in revenue, has litigated prominent anti-LGBT cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission, which established that a Colorado bakery could refuse service to a gay couple. The legal organization drafted the language for a slew of anti-trans laws that require students to use facilities that correspond to their sex assigned at birth. Civil rights organizations have warned that these so-called “bathroom bills,” which have been proposed in 17 states and passed only in North Carolina, would make trans students more vulnerable to harassment, violence, and suicide. ADF has also fought to prevent trans women and girls from competing in student athletics, and has advised anti-LGBT groups internationally, including a group of lawmakers who passed a draconian anti-gay measure in Romania.
WILL is funded by Koch dollars and forms Wisconsin’s branch of the State Policy Network (SPN), which, per Source Watch, “[operates] as the policy, communications, and litigation arm of the American Legislative Exchange Council (ALEC), giving the cookie-cutter ALEC agenda a sheen of academic legitimacy and state-based support.” WILL has gone to bat for proponents of private religious education, and several WILL attorneys backed prolific homophobe Brian Hagedorn in his bid for the state supreme court. But the lawsuit filed last month, and WILL’s public partnership with ADF, mark the Wisconsin legal organization’s first ostentatiously anti-LGBT push.
And although the complaint filed against MMSD is couched in the language of “parental consent,” WILL attorney Luke Berg has made explicit the transphobia underlying the suit in an interview for a podcast hosted by the Family Research Council (FRC)—another SPLC-designated hate group.
“The school district,” said Berg, “is actively teaching kids from kindergarten on that they have a right to pick whatever gender they want that they might be born in the wrong body and… that’s dangerous to be teaching young kids.”
Like many cases ADF takes on, the ongoing WILL lawsuit against the Madison schools invokes an argument about religious freedom and protections—for Christian fundamentalists. Six of the plaintiffs, per WILL’s complaint, are “active Christians who seek to apply their beliefs to everything they teach their children, including about their sex.”
WILL’s recent affiliation with ADF reflects the growing sway that the Christian right exercises in conservative politics in America: While WILL litigates a case to curb rights for trans students, ALEC has demonstrated its commitment to the Christian right by taking up socially repugnant cases like Masterpiece Cakeshop and losing “brand sensitive” corporate partners including Coca-Cola, Visa, and Comcast, in the process. With Donald Trump, an isolationist, reactionary fascist in power, and an evangelical Christian supremacist—Mike Pence—second in command, conservative groups have honed a legal strategy intended to further the ideological project of Christian fundamentalism, a project inseparable from the promotion of hate and bigotry.