Law & Courts

Appeals Court Blocks District Policy That Requires Students to ‘Respect’ Gender Identity

By Mark Walsh — September 29, 2023 4 min read
A poster is held at the Iowa Queer Student Alliance "We say gay" rally inside the Iowa State Capitol on March 8, 2023, in Des Moines, Iowa.
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A federal appeals court on Friday blocked an Iowa school district’s policy that bars staff members or students from refusing to “respect” a student’s gender identity, such as by not using the name and pronoun a transgender student uses.

A unanimous three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, said the policy was unconstitutionally vague under the First Amendment, and could lead to a substantial risk that administrators would arbitrarily enforce it against students.

The Sept. 29 decision in Parents Defending Education v. Linn-Mar Community School District comes at a time when school districts across the country are grappling with policies that impact transgender students and facing sharply contrasting pressures on what they should or must do.

A concurring judge suggested that the Iowa district is essentially caught between a rock and a hard place, with the First Amendment on one side and federal and state law dictates against bullying and barring discrimination based on gender identity on the other.

“I agree that schools are limited in their ability to regulate speech that is merely offensive to some listener,” Judge Jane Kelly said, but the district “has a duty, under federal and state law, to protect students from harassment and discrimination on the basis of sex.”

That extends to gender identity, Kelly said, explicitly under Iowa law and through recent legal interpretations of federal Title IX of the Education Amendments of 1972, which in its statutory language bars discrimination based on sex.

Kelly called the district’s policy “appropriately inclusive.” The district seeks to “ensure a safe, affirming, and healthy school environment where every student, including those of all gender identities, can learn effectively,” Kelly said, but the district “may have used language that is insufficiently tailored to its effort to achieve this goal.”

Some provisions of district’s policy superseded by a new state law

The 7,500-student Linn-Mar district adopted its broad policy on transgender and gender non-conforming students in April 2022. The policy included provisions to develop gender support plans for transgender students and keep gender identities confidential, even from parents, unless authorized by the students.

The policy also includes a section on “names and pronouns,” which says that any “intentional and/or persistent refusal by staff or students to respect a student’s gender identity is a violation of school board policies,” including its anti-bullying and anti-harassment policies.

Parents Defending Education, a national group that has figured prominently in debates over transgender policies in schools, sued the district in federal district court, along with several anonymous parents in the district, alleging violations of parents’ 14th Amendment substantive due process rights to direct the upbringing of their children and students First Amendment free speech rights.

The district court declined to issue an injunction against the policy, and while that ruling was pending appeal, Iowa passed a law, effective July 1 this year, that bars school districts from providing false or misleading information to parents about a student’s transgender status or intention to transition to a gender different from what is on the student’s birth certificate.

The 8th Circuit panel ruled that the plaintiffs’ claims against the policy’s gender support plan and confidentiality provisions were moot because those provisions were superseded by the new state law.

“The new Iowa statute provides [certain] parents all of their requested relief,” Judge Steven M. Colloton wrote for the court. “The district may not knowingly give false information to a parent about a student’s gender identity, and must notify a parent of a student’s request for a gender accommodation from a licensed practitioner.”

Court rejects district’s arguments that policy is limited in scope

But at least one anonymous parent had standing to revive the First Amendment challenge to the “respect” policy, the court said.

“Parent G asserts that her son wants to state his belief that biological sex is immutable’ [and] disagree with another student’s assertion about whether they are male or female,” among other ideological objections to the district’s policy and transgender status,” the court said. “Because of the policy, however, Parent G states that her son remains silent in school when gender identity topics arise to avoid violating the policy.”

The school district argued that harassment or bullying is not protected speech at school, and that its policy only requires using a student’s preferred name and pronouns but does not restrict “general opinions” about gender identity.

The court rejected those arguments.

“The policy broadly prohibits a refusal to ‘respect a student’s gender identity,’” Colloton said. “The policy does not define ‘respect,’ and the expression of opinions like those held by Parent G’s child arguably would violate the policy.”

Students would not know, for example, whether they were violating the policy if they expressed discomfort about sharing a restroom with transgender students, spoke up in class to argue that biological sex is immutable, or opined about transgender students’ participation in team sports, the court said.

“We are not convinced that a student may rest assured that the policy is as narrow as the district asserts in litigation,” Colloton said.

The court sent the case back to the district court for further proceedings and ordered an injunction blocking the “respect” policy.


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