Court Rejects Teacher’s Challenge to Gender Secrecy Policy: ‘Transing’ Kids is Part of Her Job

Court Rejects Teacher’s Challenge to Gender Secrecy Policy: ‘Transing’ Kids is Part of Her Job

A federal appeals court has denied a teacher’s challenge to the Montgomery County, MD, schools’ gender secrecy policy, rejecting her constitutional claims against the district.

The “speech” she objected to in the school guidelines is “part of her official duties as a teacher”—and, as such, unprotected by the First Amendment, a divided three-judge panel of the Fourth Circuit Court of Appeals concluded.

As a Christian who believes there are only two God-given sexes, Kimberly Polk refused to comply with school guidelines requiring her to use her students’ preferred pronouns and to refrain from discussing any student’s gender identity with their parents. She applied for a religious exemption, which the school district promptly rejected.

Rather than remain at her substitute teaching job, Polk sued in federal district court, claiming the school violated her free exercise of religion and free speech rights. The court denied those claims last year.

On appeal, the Fourth Circuit panel affirmed, over a vigorous dissent by Judge J. Harvie Wilkinson, who denounced the policy as a “gross assault” on the First Amendment and a “paradigmatic example of viewpoint discrimination.”

In her lawsuit, Polk asserted that the school’s guidelines forced her “to embrace and speak the transgender message of students” in violation of her convictions and her rights to free speech.

However, the appeals court disagreed.

Rules are rules. And once in school, Polk spoke as an employee, not as a private citizen, the panel concluded. The district guidelines didn’t violate her free speech rights; rather, they established “her official duties as a substitute teacher for Montgomery County’s public schools”:

“[H]ow a teacher addresses a particular student in a particular classroom — and whether a teacher communicates with a student’s parent — is merely a part of that teacher’s job description,” the court stated.

While Judge Wilkinson concurred with the majority’s dismissal of Polk’s free exercise claim—dictated by binding Supreme Court precedent—he roundly rejected their dismissal of her free speech claim. They had given “short shrift” to what the teacher’s case is really about: compelled speech.

The Montgomery County school system “seeks to put words in Ms. Polk’s mouth,” Judge Wilkinson wrote:

“It demands that teachers speak a message supportive of transgenderism by requiring the use of students’ preferred pronouns, silence or reasonable alternatives be damned.” That “leaves teachers completely vulnerable to becoming the unwilling mouthpieces of government messaging.”

“Because the school policy compels speech on a noncurricular matter, and because reasonable alternatives existed (e.g., using only students’ last names),” Polk was likely to succeed on the merits of her free-speech claim, Judge Wilkinson’s dissent concluded.

Teachers in other jurisdictions have successfully challenged their school’s pronoun policies as unconstitutional compelled speech, as we covered here and here. In each of those cases, the courts agreed that the school’s name and pronoun practice amounted to compelled speech: the teachers were allegedly forced to resign not for what they said, but for what they refused to say.

Last week’s appeals court decision marks the latest in a series of high-stakes cases coming out of the cesspit of radical gender ideology that is the Montgomery County Public School system. In 2023, a divided panel ruled that a group of Montgomery County parents had no standing to challenge their schools’ gender transitioning policy, as we covered here. More recently, the Fourth Circuit was reversed by the Supreme Court in Mahmoud v. Taylor, upholding parents’ rights to opt their children out of LGBTQ+ instruction in the county’s  schools.

The court’s ruling against the teacher also follows parental uproar over a “Transgender Awareness Week” video lesson shown to Bethesda, MD middle school students—students as young as 11 years old—on how to “come out” as non-binary.

And it comes amid a government crackdown on secret social transitioning policies. Last week, the Trump administration announced it had found the California Department of Education in violation of the Family Educational Rights and Privacy Act (FERPA)—a federal law giving parents the right to access their child’s education records—because of its policies pressuring school officials to conceal information about students’ expressed gender identity.

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