Employee’s Religious Accommodations Request Clashes with Employer’s Gender Identity Policy in Pending Fourth Circuit Case

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A former substitute teacher in a Maryland school district has appealed a lower court’s decision to dismiss her First Amendment free exercise and free speech claims and its denial of her motion for preliminary injunction to continue teaching in classrooms where there are no transgender students.  The Fourth Circuit will hear oral arguments on Thursday, October 23.

Kimberly Polk filed a complaint in May 2024 alleging the Montgomery County Public School System, Board of Education, and school officials violated her right to free speech, free exercise of religion, and Title VII, when it denied her request for a religious accommodation to be exempted from complying with the school district’s policy that requires staff members to address students by their identified name and pronoun, and to try to maintain the confidentiality of a student's transgender status.

The district court rejected Polk’s First Amendment free exercise claim on the grounds that she failed to show the policy was not rationally related to a legitimate government purpose. One of the legitimate government purposes for the policy identified by the school board was its obligation to comply with Title IX. Under Title IX, the school board is prohibited from discriminating against transgender students at school based on Fourth Circuit precedent decided in 2020, Grimm v. Gloucester County School Board, which found the school board's refusal to let a transgender student use the bathroom corresponding to his gender identity and to update his school records to reflect his gender identity violated Title IX. 

Polk’s freedom of speech claim was dismissed on the grounds that the speech at issue, referring to students by pronouns in the classroom and speaking to parents about their child’s conduct at school, is unprotected by the First Amendment because it is part of Polk’s official duties as a teacher, and the school board can compel lawful speech as part of those official duties including requiring compliance with its policies.

Polk’s Title VII claim survived the school board’s motion to dismiss. The district court determined it was premature to say at the pleading stage that any accommodation suitable to Polk would violate Title IX and thus cause an undue hardship.

Whether Polk’s religious accommodation request constitutes an undue hardship for the school board presents an interesting question since the Supreme Court clarified in the 2023 case, Groff v. DeJoy, that an employer’s burden to show an undue hardship due to a religious accommodation is “substantial increased costs in relation to the conduct of its particular business,” which is a higher burden on the employer than was required under the prior standard. It is also pertinent given the EEOC’s August 22, 2025, press release^[1] describing its ongoing efforts to enforce the new standard and “commitment to upholding religious liberty protections for workers.”

This case illustrates the difficult task faced by employers seeking to balance employee rights and employer policies. This task is likely to be further complicated by the shifting priorities of the EEOC to reject the concept of gender identity and transgender rights, despite apparent tension with current law under Bostock v. Clayton County, wherein the Supreme Court held that discrimination against a person for being transgender is unlawful sex discrimination under Title VII.

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[1] U.S. Equal Employment Opportunity Commission, 200 Days of EEOC Action to Protect Religious Freedom at Work, Aug. 22, 2025, https://www.eeoc.gov/newsroom/200-days-eeoc-action-protect-religious-freedom-work.