Parents Ask Full Circuit Panel To Rehear Challenge To Ohio School District’s Transgender Pronoun Policy

Parents Ask Full Circuit Panel To Rehear Challenge To Ohio School District’s Transgender Pronoun Policy

A parents group has asked a full panel of the Sixth Circuit Court of Appeals to rehear its challenge to an Ohio school district’s “misgendering” policy. The organization, Parents Defending Education (PDE), is appealing an earlier decision by the circuit’s three-judge panel denying their bid to block the school’s pronoun policy.

We’ve covered several other lawsuits over pronoun policies in schools, but they’ve all involved teachers who object to following rules that facilitate their students’ social transitioning.

In this case, it’s the students who are being told what they can and cannot say—and facing punishment if they disobey.

Under the Ohio school district’s anti-harassment and anti-bullying policies, students are prohibited from using their transgender classmates’ non-preferred pronouns. And it’s not just when they’re talking to their friends in class.

The school’s oversight extends to their conversations by phone or computer, forbidding them to communicate on their personal devices “in any way that might reasonably create in the mind of another person an impression of being threatened, humiliated, harassed, embarrassed or intimidated.” And the policies apply whether the students are on or off school grounds, texting on their own time.

Even a joke, told the wrong way, can get a student in trouble. The school’s code of conduct prohibits “discriminatory language,” which it defines as “verbal or written comments, jokes, and slurs that are derogatory towards an individual or group” based on protected characteristics, including “sex,” “sexual orientation,” and “transgender identity.” As the ACLU observed in its amicus brief filed in support of the parents, the school’s policies would ban “jokes about men, boys, girls, Catholics, or British nationals,” as well as any joke “that began, ‘a priest, a rabbi, and an imam walked into a restaurant’—almost no matter how it ended.”

Last year, PDE sued the school district over its sweeping policies, claiming, among other things, they constituted compelled speech and viewpoint descrimination in violation of the First Amendment. Importantly, in ways that will become clear, they also claimed that the school had not supported the policies with the constitutionally required evidence. The district court rejected the parents’ claims, holding that the policies don’t compel speech or discriminate based on viewpoint.

In July, the Sixth Circuit affirmed the decision, over Judge Alice Batchelder’s 30-page dissent, leaving the policies in place for the time being.

And now, PDE has petitioned for a rehearing. They argue the panel made a precedent-setting error in a case of exceptional public importance when it denied their request to block the school’s unconstitutional rules.

The parents say the school’s policies compel their children to affirm something they don’t believe—that a child can “transition” to the opposite sex. If a student has to call a male classmate a “she,” that forces the student to communicate the message that people can have a gender identity inconsistent with their biological sex, in violation of the First Amendment.

The school’s pronoun policy also discriminates based on viewpoint, the parents say: “Students on one side of the debate are banned from saying a ‘transgender’ man is ‘not a real man’,” but students on the other side are free to say an “anti-trans bigot” is “not a real human.” This censoring of the students’ speech, they argue, is viewpoint regulation prohibited under the First Amendment.

When a school’s policies ban speech in these ways, the burden is on the school to show they’re necessary to avoid “substantial disruption” under the landmark case of Tinker v. Des Moines Independent Community School District.

And here is where the record in this case takes an irregular turn.

The school district submitted “zero evidence of disruption,” the parents say: “No declarations from school officials. No minutes from school meetings. No study or article. Not even an anecdote.”

It didn’t have to, according to the majority on the panel when it affirmed the district court ruling: The “disruptive effect” of non-preferred pronouns, they held, was “common-sense.”

Actually, there was some evidence in the record, the parents say—but that evidence wasn’t provided by the school: The district court conducted and relied on its own independent research when it determined that “misgendering” trans students is “deeply harmful.”

That’s not the court’s job.

Judge Batchelder took the district court to task for taking the record into its own hands:

The record below contains no evidence that the [school district][*] even tried to carry its burden.

To rescue it, the district court had to conjure up law-review articles, newspaper stories, and even a complaint from another pending case to conclude that biological pronouns will “inflict[] measurable psychological and physiological harms” on transgender students.

…

[C]ourts are generally ‘not in the business of developing parties’ arguments,’ and the district court should not have done so here.

If the court of appeals grants the parents’ petition, we’ll be watching closely to see whether it reverses based on the district court’s reliance on evidence the court itself supplied for the benefit of the school.

Meanwhile, the parents have the support of over 22 states and several other civil rights organizations that have filed amicus briefs on their side. They say forcing students to use biologically incorrect pronouns is compelled speech.

Mandating the use of biologically incorrect pronouns is compelled speech. Compelled speech is antithetical free speech. The erosion of free speech is the first step to becoming a totalitarian state.

Make sense? https://t.co/vfeeLYdGSK

— Riley Gaines (@Riley_Gaines_) September 3, 2024

As the dissent said, and we pointed out here, the compelled speech in these policies “concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering.” The school’s rules force the students to affirm the premise—a premise they reject—that there is any such thing as “gender transitioning.”

And so far, it appears, the school hasn’t proved why children should have to pretend that there is.

[*]written in the decision as “District court.”

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