Law & Courts

A District’s Rule Against Misgendering Students Is Likely Constitutional

By Mark Walsh — July 30, 2024 4 min read
Demonstrators advocating for transgender rights and healthcare stand outside of the Ohio Statehouse, Jan. 24, 2024, in Columbus, Ohio. A federal appeals court on Wednesday, July 17, refused to lift a judge's order temporarily blocking the Biden administration’s new Title IX rule meant to expand protections for LGBTQ+ students
  • Save to favorites
  • Print

A divided federal appeals court refused to block an Ohio school district’s rules that bar students from using pronouns that misgender their classmates. The policy, the court said, likely does not violate the First Amendment rights of students with religious beliefs that there is no such thing as a gender transition.

“Transgender students experience the use of non-preferred pronouns as dehumanizing and … as a result, the repeated use of such pronouns can have severely negative effects on children and young adults,” said the majority opinion on July 29 by a 2-1 panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The court said the intentional use of preferred or nonpreferred pronouns is speech under the First Amendment, but the policies of the 24,000-student Olentangy school district were likely justified by the need to eliminate disruption and protect transgender students. The court rejected an injunction to block the rules sought by the national group Parents Defending Education on behalf of several district parents who argued that their children should not be required to use pronouns that conflict with their beliefs that there are only two biological-based genders.

“Perhaps the single thing on which the parties agree is that pronouns matter,” said the majority opinion by Judge Jane B. Stranch, an appointee of President Barack Obama. “That is true for transgender students in the district, who 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. It is also true for [the plaintiff] children, whose parents aver that using pronouns inconsistent with a person’s biological sex at birth contradicts their ‘deeply held beliefs’ about the immutability of sex.”

The opinion was joined by Judge Stephanie D. Davis, an appointee of President Joe Biden.

A school district’s rules are interpreted to bar misgendering, but it offers some alternatives

In 2023, the Olentangy district north of Columbus revised several of its policies to add protections against gender-identity discrimination. When a parent asked in an email whether their “devoutly Christian child who believes in two biological genders” would “be forced to use the pronouns that a transgender child identifies with or be subject to reprimand from the district,” a district lawyer responded that a student “purposefully referring to another student by using gendered language they know is contrary to the other student’s identity” would be discrimination under the district’s policies.

Parents Defending Education, which is involved in several similar cases across the country, sued on behalf of several parents in the district, arguing that the policies violated the First Amendment’s free-speech clause by impermissibly compelling speech, regulating speech based on viewpoint and content, and imposing overbroad restrictions on speech.

A federal district court last year denied a preliminary injunction to block the district’s policies. In its July 29 decision in Parents Defending Education v. Olentangy Local School District, the 6th Circuit affirmed the lower court.

“Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause,” Stranch wrote for the majority.

The court rejected the compelled-speech argument by the plaintiffs, noting that the school district has said no student would be compelled to use pronouns aligning with a transgender student’s gender identity. Instead, the student could use the classmate’s first name or avoid using pronouns altogether, the district said.

The appeals court rejected the viewpoint-discrimination argument because the district’s policies prohibit harassment, misconduct, and other disruptive speech across a variety of categories and it allows students to express the viewpoint that sex is immutable by several means other than “the use of non-preferred pronouns.” For example, the district said in court proceedings that it would allow a student to wear a T-shirt with the message, “Gender is not fluid,” the court said.

Judge Alice M. Batchelder, an appointee of President George H.W. Bush, dissented, saying “The First Amendment forbids the district from compelling students to use speech that conveys a message with which they disagree, namely that biology does not determine gender.”

The district’s suggestion that objecting students use no pronouns was “awkward” and “requires the speaker to recognize and accept that gender transition is a real thing.”

“Regardless of whether students can also discuss gender ideology in the abstract—which is also protected speech—the students’ protected speech here is their use of biological pronouns to affirm their own belief that people are either male or female and that a child cannot ‘transition’ from one sex to another,” Batchelder said.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Personalized Learning Webinar
Personalized Learning in the STEM Classroom
Unlock the power of personalized learning in STEM! Join our webinar to learn how to create engaging, student-centered classrooms.
Content provided by Project Lead The Way
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Webinar
Students Speak, Schools Thrive: The Impact of Student Voice Data on Achievement
Research shows that when students feel heard, their outcomes improve. Join us to learn how to capture student voice data & create positive change in your district.
Content provided by Panorama Education
School & District Management Live Online Discussion A Seat at the Table: How Can We ‘Disagree Better’? A Roadmap for Educators
Experts in conflict resolution, psychology, and leadership skills offer K-12 leaders skills to avoid conflict in challenging circumstances.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Iowa's Book Ban Is Reinstated by Appeals Court But Case Against It Will Continue
The Iowa law bars books depicting sex in school libraries and discussions of sexual orientation and gender identity in preK-6.
4 min read
An LGBTQ+ related book is seen on shelf at Fabulosa Books a store in the Castro District of San Francisco on Thursday, June 27, 2024. "Books Not Bans" is a program initiated and sponsored by the store that sends boxes of LGBTQ+ books to LGBTQ+ organizations in conservative parts of America, places where politicians are demonizing and banning books with LGBTQ+ affirming content.
An LGBTQ+ book section is seen at Fabulosa Books, a store in San Francisco, on June 27, 2024. A federal appeals court has reinstated an Iowa law that prohibits books depicting sex from public school libraries. Challengers claim the law has led school districts to remove scores of books out of fear of violating the law.
Haven Daley/AP
Law & Courts Louisiana Uses History, Pop Culture to Defend School Ten Commandments Mandate
Suggested options pair the Ten Commandments with Charlton Heston, Martin Luther King Jr., and Regina George of "Mean Girls."
6 min read
Louisiana Attorney General Liz Murrill, right, speaks alongside Louisiana Gov. Jeff Landry during a press conference regarding the Ten Commandments in schools Monday, Aug. 5, 2024, in Baton Rouge, La. Murrill announced on Monday that she is filing a brief in federal court asking a judge to dismiss a lawsuit seeking to overturn the state’s new law requiring that the Ten Commandments be displayed in every public school classroom.
Louisiana Attorney General Liz Murrill, right, speaks alongside Louisiana Gov. Jeff Landry during an Aug. 5, 2024, press conference in Baton Rouge, La., on the display of the Ten Commandments in public schools. Murrill is seeking to dismiss a lawsuit aiming to overturn the state’s law requiring that they be posted in every classroom.
Hilary Scheinuk/The Advocate via AP
Law & Courts Biden's Title IX Rule Takes Effect Amid a Confusing Legal Landscape
The rule that expands protections for LGBTQ+ students is effective Aug. 1, but injunctions currently block it in 26 states.
7 min read
The U.S. Supreme Court is seen on Thursday, June 29, 2023, in Washington.
The Biden administration's new Title IX regulation was set to take effect Aug. 1, but only in parts of the country as court injunctions block it in 26 states and the U.S. Supreme Court weighs a request to step into the debate.
AP
Law & Courts Not Just Title IX: How the Chevron Decision Could Affect Education Regulations
The Supreme Court's Loper Bright decision could have an impact on Education Department rules interpreting multiple federal laws.
7 min read
The Supreme Court is seen, April 21, 2023, in Washington.
The Supreme Court is seen, April 21, 2023, in Washington. A recent decision from the high court overruled a longtime precedent that called on courts to defer to federal agencies' reasonable interpretations of federal laws. The decision could lead to more challenges to U.S. Department of Education regulations, legal experts say.
Alex Brandon/AP