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.
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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.
