In Parents Defending Education v. Olentangy Local School District, (6th Cir., July 29, 2024), the U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected free speech challenges to a school district's anti-bullying and anti-harassment policies that prohibit students from using pronouns that are inconsistent with another student’s gender identity if the use amounts to harassment. The majority said in part:
... Parent A-D’s children intend to communicate a message by using non-preferred pronouns to refer to their classmates.... [T]he single thing on which the parties agree is that pronouns matter. 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 Parent A-D’s 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 intentional use of preferred or non-preferred pronouns therefore represents speech protected by the First Amendment....
Students 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.... Parents A-D, to be sure, have made clear that this option is not their preference because their children “don’t want to avoid using pronouns ... they want to use biologically correct pronouns.”... But using first names is remarkably similar to a proposed “compromise” we praised in Meriwether—the plaintiff’s proposal to “call on [the transgender student in his class] using [that student’s] last name alone,” rather than any honorifics....
Outside instructional time, moreover, students may elect to not refer to their transgender classmates at all. This choice to not speak mirrors the generally accepted accommodation for students morally opposed to reciting the Pledge of Allegiance....
At bottom, PDE has failed to make a clear showing that the District’s prohibition on the intentional use of non-preferred pronouns unconstitutionally compels speech. ...
... [T]he District’s position that students may communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns, indicate that the District is not attempting to prohibit any viewpoints....
Judge Batchelder dissented, saying in part:
As I understand it, the plaintiffs’ position—based on their scientific (biology, physiology, and genetics) and religious beliefs—is that biological gender is immutable, people are either male or female, and there is no such thing as “gender transition”; that is a made-up thing, imaginary or make believe, and a public school cannot force their children to pretend it is a real thing. Agree or disagree, but that is their position.
In that light, the speech at issue here concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering. The Olentangy Local School District’s view—contrary to Parents Defending Education’s—is that there is such a thing as gender transition; it is real, worthy of recognition and, in fact, worthy of protection in the public schools. Why else would the District require preferred pronouns, prohibit biological pronouns, or press the odd compromise of no pronouns at all? Therefore, the governmental authority (the District) has taken a clear position (viewpoint) in which all of its captive subjects (students) must affirm the existence of gender transition (either through words or silence), regardless of their own view. This is a viewpoint-based regulation of speech....
Courthouse News Service reports on the decision.
