Divided Sixth Circuit Panel Rejects First Amendment Challenge to School’s Transgender Pronoun Policy

On Monday, a divided panel of the Sixth Circuit ruled (in Parents Defending Education v. Olentangy School District) that parents and students challenging a school district’s policy against the use of what the majority calls “non-preferred pronouns” were not entitled to injunctive relief on their First Amendment claim. In the majority’s summary, the policies “prohibit students from repeatedly and intentionally using non-preferred pronouns to refer to their classmates.”

Judge Jane Stranch wrote the majority opinion, which Judge Stephanie Dawkins Davis joined. Emphasizing that the “standard of review matters here,” Stranch concludes that plaintiffs failed to meet their “burden to show clearly that the factors weigh in its favor to such a degree that the extraordinary remedy of a preliminary injunction is warranted.”

Among the majority’s conclusions:

• Because plaintiffs brought a pre-enforcement challenge, “no prohibited speech has yet occurred, and [the school district] cannot be faulted for failing to identify disruption from speech that is merely hypothesized.”
• “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.”
• The policies do not discriminate on the basis of viewpoint because they “proscribe harassment, misconduct, and other disruptive speech across a variety of categories” and allow students to “communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns.”

Here is an excerpt from the opening of Judge Alice Batchelder’s powerful dissent (citations omitted):

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.

And in this light, it is also compelled speech—the students’ only options begin from the District’s viewpoint that gender transition is a real thing; from there the students must conform their own expression around that viewpoint. The Constitution prohibits this….

The majority also concludes that there is no viewpoint problem here because the District has expressed no view about whether gender transition is good or bad, and the students remain free to discuss or debate it. That is like saying the school has taken no viewpoint on ghosts when it has students debate whether ghosts are good or evil. But the plaintiffs’ point would be that there is no such thing as ghosts! And the school has no business forcing children to believe in ghosts. Again, whether you agree or disagree, PDE’s position is that gender transition is fictitious, just like ghosts. [Emphasis in original.]