In a decision issued earlier this month, the 6th Circuit Court of Appeals concluded that disciplining students for using biological pronouns rather than their classmates’ preferred pronouns violates the First Amendment. The case, Defending Edn. v. Olentangy Local School Dist. Bd. of Edn., was originally brought in response to three district policies regarding harassment, bullying and the use of personal communication devices. The policies were intended to “maintain an education and work environment that is free from all forms of unlawful harassment” and prohibited harassment “based on race, color, national origin, sex (including sexual orientation and gender identity), disability, age (except as authorized by law), religion, ancestry or genetic information.”
A parent asked the district whether their child could be disciplined under the policies if they referred to a fellow student using pronouns different from what that student preferred. The parent was informed by the district’s counsel that “while the children certainly may maintain religious rights of freedom at school, those rights do not relieve them of the obligation to comply” with school policies. As such, the district stated that “a student purposefully referring to another student by using gendered language they know is contrary to the other student’s identity would be an example of discrimination under board policy.”
Defending Education (formerly known as Parents Defending Education) filed suit in the U.S. District Court and requested a preliminary injunction on behalf of four parents, each of whom stated their children wished to use pronouns that were consistent with a classmate’s biological sex, rather than the classmate’s “preferred pronouns,” as an expression of their deeply held views that there are two biological genders and that a person’s gender is decided at conception by God. The complaint alleged that the district’s policies unconstitutionally compelled speech by requiring students to use preferred pronouns rather than biological pronouns, engaged in improper content-based and viewpoint-based discrimination, and were unconstitutionally overbroad.
The District Court denied Defending Education’s request. On appeal, a panel of judges in the 6th Circuit Court of Appeals upheld the District Court’s decision. Defending Education petitioned the circuit court, asking that the full court (En Banc) review the case. The court granted the petition and the En Banc decision was issued Nov. 6.
In its decision, the court recognized two competing interests in the case – free speech rights of students and the district’s duty to protect all students from bullying and harassment. The court held that the district had fallen short of demonstrating that the use of biological pronouns would materially and substantially disrupt school activities or infringe on the legal rights of others. It noted that no evidence was presented that the use of biological pronouns would qualify as harassment under Ohio law. The court stated: "Defending Education's members want to use biological pronouns not because they seek to ridicule others but because they want to speak what they view as the truth." Although the members acknowledged that their speech could offend others, the court concluded that the undifferentiated possibility for offense did not “suffice to proscribe speech on an important matter of public policy.” Further, it stated: “The district is wrong to equate the speech here (the use of biological pronouns) with the bullying and harassment that it may prohibit."
The court stressed that the district continues to have a duty to enforce its anti-harassment policies against the abuse of transgender students, just as it enforces those policies against the abuse of all other students. However, the district was barred from restricting “speech that individuals use to alter the beliefs that they hold." The court concluded that the "School District's ban on the use of biological pronouns violates this principle."
The court reversed the holdings of the appeals panel and the district court. It remanded the matter to the district court for the entry of an “appropriately tailored preliminary injunction barring the district from punishing students for the commonplace use of biological pronouns.”
The division of legal services will continue to monitor this case and share more information when it is available. Districts with general questions can reach out to the division at (855) OSBA-LAW. For specific questions about district policies or practices, districts are encouraged to contact their policy provider or legal counsel.