A divided federal appeals court refused to block an Ohio school district鈥檚 rules that bar students from using pronouns that misgender their classmates. The policy, the court said, likely does not violate the First Amendment rights of students with religious beliefs that there is no such thing as a gender transition.
鈥淭ransgender students experience the use of non-preferred pronouns as dehumanizing and 鈥� as a result, the repeated use of such pronouns can have severely negative effects on children and young adults,鈥� said the majority opinion on July 29 by a 2-1 panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.
The court said the intentional use of preferred or nonpreferred pronouns is speech under the First Amendment, but the policies of the 24,000-student Olentangy school district were likely justified by the need to eliminate disruption and protect transgender students. The court rejected an injunction to block the rules sought by the national group Parents Defending Education on behalf of several district parents who argued that their children should not be required to use pronouns that conflict with their beliefs that there are only two biological-based genders.
鈥淧erhaps the single thing on which the parties agree is that pronouns matter,鈥� said the majority opinion by Judge Jane B. Stranch, an appointee of President Barack Obama. 鈥淭hat 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 [the plaintiff] children, whose parents aver that using pronouns inconsistent with a person鈥檚 biological sex at birth contradicts their 鈥榙eeply held beliefs鈥� about the immutability of sex.鈥�
The opinion was joined by Judge Stephanie D. Davis, an appointee of President Joe Biden.
A school district鈥檚 rules are interpreted to bar misgendering, but it offers some alternatives
In 2023, the Olentangy district north of Columbus revised several of its policies to add protections against gender-identity discrimination. When a parent asked in an email whether their 鈥渄evoutly Christian child who believes in two biological genders鈥� would 鈥渂e forced to use the pronouns that a transgender child identifies with or be subject to reprimand from the district,鈥� a district lawyer responded that a student 鈥減urposefully referring to another student by using gendered language they know is contrary to the other student鈥檚 identity鈥� would be discrimination under the district鈥檚 policies.
Parents Defending Education, which is involved in several similar cases across the country, sued on behalf of several parents in the district, arguing that the policies violated the First Amendment鈥檚 free-speech clause by impermissibly compelling speech, regulating speech based on viewpoint and content, and imposing overbroad restrictions on speech.
A federal district court last year denied a preliminary injunction to block the district鈥檚 policies. In its July 29 decision in , the 6th Circuit affirmed the lower court.
鈥淓ven this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause,鈥� Stranch wrote for the majority.
The court rejected the compelled-speech argument by the plaintiffs, noting that the school district has said no student would be compelled to use pronouns aligning with a transgender student鈥檚 gender identity. Instead, the student could use the classmate鈥檚 first name or avoid using pronouns altogether, the district said.
The appeals court rejected the viewpoint-discrimination argument because the district鈥檚 policies prohibit harassment, misconduct, and other disruptive speech across a variety of categories and it allows students to express the viewpoint that sex is immutable by several means other than 鈥渢he use of non-preferred pronouns.鈥� For example, the district said in court proceedings that it would allow a student to wear a T-shirt with the message, 鈥淕ender is not fluid,鈥� the court said.
Judge Alice M. Batchelder, an appointee of President George H.W. Bush, dissented, saying 鈥淭he First Amendment forbids the district from compelling students to use speech that conveys a message with which they disagree, namely that biology does not determine gender.鈥�
The district鈥檚 suggestion that objecting students use no pronouns was 鈥渁wkward鈥� and 鈥渞equires the speaker to recognize and accept that gender transition is a real thing.鈥�
鈥淩egardless of whether students can also discuss gender ideology in the abstract鈥攚hich is also protected speech鈥攖he students鈥� protected speech here is their use of biological pronouns to affirm their own belief that people are either male or female and that a child cannot 鈥榯ransition鈥� from one sex to another,鈥� Batchelder said.
