Late last month, the 6th Circuit Court of Appeals, which is the federal circuit that covers Ohio, refused to block a school district’s policies and code of conduct related to anti-harassment and anti-bullying of transgender students, particularly via repeatedly and intentionally using non-preferred pronouns.
In 2023, the school district included a specific prohibition from discrimination and harassment based on gender identity in its policies and code of conduct. Some parents raised the question to the district of whether their Christian children would be “forced to use the pronouns that a transgender child identifies with or be subject to reprimand from the district” under the revised policies. They maintain that their children have been raised to believe that biological sex is immutable and that individuals cannot transition from one sex to another. The district informed the parents that “purposefully” misgendering another student would constitute discrimination under the district’s policies. The parents, along with Parents Defending Education, a national advocacy group involved with several similar cases across the country, sued the school district claiming that the policies compelled speech, violated the students' freedom of religion, and infringed upon parents’ rights to direct the upbringing of their children.
In a 2-1 decision, the court of appeals refused to grant the injunction to block the district from enforcing the policies or code of conduct. The court held that the school district could address speech about student transgender identities that was "particularly harmful and likely to disrupt the educational experience." The court looked at a variety of factors raised by the parties, starting with whether the policies improperly regulated student speech in violation of the first amendment. On this ground, the court noted that the “dehumanizing and humiliating effects of non-preferred pronouns could create a substantial ‘disrupt[ion] [to] the educational process’ justifying restricting the use of those pronouns.”
The court allowed, at the preliminary induction stage, for the school to regulate the speech when its administrators “reasonably forecast” that the speech will cause a substantial disruption, even if disruption is not a certainty; the court reiterated that at the preliminary injunction stage, when the prohibited speech has not yet occurred, the school did not need to “prove” that disruption will occur. The court did leave open the possibility of a post-enforcement challenge (after the policies are enforced against particular students) at which time a factual record would exist for courts to review “for evidence supporting or undermining a prediction that substantial disruption is likely to flow from student speech.”
Next the court looked at whether the policies unconstitutionally compel speech. The plaintiffs claimed that having to use “pronouns inconsistent with a person’s biological sex at birth contradicts their children’s ‘deeply held beliefs’ about the immutability of sex.” The court noted that, likewise, transgender students in the district “experience the use of preferred pronouns as a vital part of affirming their existence and experience the use of non-preferred pronouns as dehumanizing, degrading, and humiliating.” Ultimately the court noted that the “intentional use of preferred or non-preferred pronouns therefore represents speech protected by the First Amendment.” But importantly for this case, the court noted that the speech isn’t actually compelled here because “[s]tudents who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all, and refer to their classmates using first names.” The court also identified that, outside of instructional time, students do not have to refer to their transgender classmates at all. While the plaintiffs made it clear to the court that they do not want to avoid the pronouns and, instead, want to use biologically correct pronouns, the court viewed its suggested option as “a means of respecting both sides’ deeply held beliefs concerning gender identity.”
Third, the court analyzed whether preventing the use of non-preferred pronouns was unconstitutional viewpoint discrimination - regulation of speech when the specific motivating ideology, or the opinion or perspective of the speaker, is the rationale for the restriction. The court found that the district permits students to communicate their belief that sex is immutable through means other than the use of non-preferred pronouns, showing that the district is not attempting to prohibit any viewpoint. Further, the record did not support that the district’s enforcement of the policies was different regarding gender identity compared to any other protected class.
Finally, the court looked to whether the policies and code of conduct were overbroad, looking at each one individually. Ultimately each of the policies and the code of conduct was appropriately tailored to address conduct that the Supreme Court has deemed schools can address, such as conduct that causes a substantial disruption or harassment or threats targeting particular individuals or aimed at teachers or other students.
There was a lengthy dissent in the case, identifying the starkly different perspectives that are taken even by judges on these matters. We will continue to monitor this case as well as the many others currently in process on these complex issues.