In Defending Education v. Olentangy Local School District Board of Education, (6th Cir., Nov. 6, 2025), the U.S. 6th Circuit Court of Appeals in a 10-7 en banc decision held that the free speech rights of public-school students are infringed when the school prohibits them from calling fellow-students who are transgender by their biological pronouns rather than the pronouns preferred by their fellow students. A 3-judge panel of the 6th Circuit had reached an opposite conclusion. (See prior posting.) Plaintiff students and parents hold religious beliefs that gender is immutable. Opinions in the en banc case span 112 pages. The en banc court's majority opinion said in part:
A school district may not restrict personal speech on matters of public concern unless the speech would “materially and substantially disrupt” school activities or infringe the legal “rights of others” in the school community. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). In this case’s current posture, the school district has fallen far short of meeting this demanding standard. It introduced no evidence that the use of biological pronouns would disrupt school functions or qualify as harassment under Ohio law....
... [T]he School District has regulated personal expression—the use of biological pronouns to convey a student’s scientific and religious beliefs—that addresses a “sensitive topic of public concern.” ... As part of the broader debate over transgender rights, the question whether speakers should use preferred pronouns to refer to transgender individuals—and whether we should treat the commonplace (and non-antagonistic) use of biological pronouns as proper or offensive—has stirred a “passionate political and social debate” in our society....
... [T] the School District has not just entered this policy debate. It has taken a side. The School District has “targeted” a speaker’s use of biological pronouns as improper while allowing students to use preferred pronouns (no matter how novel)....
... The School District is right that schools may bar abusive “invective” that targets “specific” students—whether transgender students, religious students, female students, Hispanic students, or any others.... That is, a school could bar a student from abusively ridiculing a transgender classmate’s “physical characteristics” in the same way it could bar a student from abusively ridiculing a smaller student’s physical characteristics.... But the School District is wrong to treat the use of biological pronouns alone as analogous to this abusive invective. 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....
Ohio law defines “harassment, intimidation, or bullying” to cover speech directed at another student only if the speech both “[c]auses mental or physical harm to the other student,” and “[i]s sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.” Ohio Rev. Code § 3313.666(A)(2)(a). And the School District has offered no evidence that the commonplace use of biological pronouns would create an intimidating, threating, or abusive environment....
Judge Batchelder filed a concurring opinion, saying in part:
... [E]ven if the School District were to produce overwhelming evidence of disruption, that evidence would still not justify the compelled-speech or viewpoint-discrimination aspects of its preferred-pronoun policies.
Judge Kethledge filed a concurring opinion, saying in part:
... [T]o determine whether the plaintiffs here should prevail on their First Amendment claim, we should begin with the right question: namely, whether the historic common law would have subjected a student to punishment (as a matter of public law or private) for referring to a classmate with biological pronouns that the classmate had insisted the student not use. Considering the speech alone, the answer is likely no. For one thing, as noted above, offense or dignitary harm was not cognizable at law.... And the right to express one’s opinions in good faith would almost certainly protect the speech at issue here....
A final point is hortatory rather than legal. That the law permits certain action does not mean that an individual should necessarily engage in it....
Judges Thapar and Nalbandian filed a concurring opinion, saying in part:
In the end, the School District’s policy “mandates orthodoxy, not anti-discrimination,” and fails to recognize that “[t]olerance is a two-way street.”... The District chose a side in a hotly contested debate and tried to squelch the opposing viewpoint by imposing an ideological speech code. When it did so, it unlawfully discriminated based on viewpoint. And while we appreciate the majority’s thoughtful Tinker approach, we worry that students’ rights to speak freely on important matters of public interest should not hang in the balance while district courts perform ad hoc inquiries into how “disrupt[ive]” they find the students’ viewpoint....
Judge Bush filed a concurring opinion, saying in part:
Rather than employ the traditional monsieur (for a man) and madame or mademoiselle (for women) or use longstanding aristocratic titles..., the French revolutionaries replaced those words with the masculine citoyen or feminine citoyenne (both translated as “citizen”) to refer to all men and women, respectively, regardless of station....
Like the French revolutionaries, communists also sought to revolutionize forms of address for political ends. Communist regimes strongly encouraged and sometimes mandated use of “comrade” instead of traditionally employed honorifics to refer to another person, just as the French revolutionaries insisted on the use of “citizen.” That was not surprising. “[T]he history of authoritarian government . . . shows how relentless authoritarian regimes are in their attempts to stifle free speech . . . .” ...
Governments in the United States—federal or state—never operated that way. Our Constitution forbids mandatory use of certain titles to refer to others....
American history and tradition uphold the majority’s decision to strike down the school’s pronoun policy. Over hundreds of years, grammar has developed in America without governmental interference. Consistent with our historical tradition and our cherished First Amendment, the pronoun debate must be won through individual persuasion, not government coercion. Our system forbids public schools from becoming “enclaves of totalitarianism.”
Judge Stranch joined by Judges Moore, Clay, Davis, Mathis, Bloomekatz and Ritz, filed a dissenting opinion, saying in part:
In this case, the School District has repeatedly affirmed that the children of Defending Education members will have the right to express beliefs about transgender identities. Those children will be permitted to express the view that sex is immutable. But it is not viewpoint discrimination to require those students to share those beliefs in a manner that does not disrupt the education of others....
The District made clear in its Policies that the purpose of the ban on intentional use of non-preferred pronouns is to prevent disruption in the form of trauma to transgender or nonbinary students of a degree likely to hamper those students’ ability to learn. Evidence of that purpose was before the district court.....
Though the record satisfied Tinker’s requirement that the School District’s forecast be reasonable, the majority opinion concluded otherwise, positing and applying a new approach: that “the closer the speech resembles political expression at the First Amendment’s core, the more evidence a school must present of the potential disruption or violation of rights.”...
... Existing precedent provides educators—those most attuned to the issues in their schools—with a reasonable level of agency to develop productive, civilized educational settings while protecting both student rights and student safety.
Columbus Dispatch reports on the decision.
