Court: School’s transgender “don’t tell” policy falls short

A federal judge sided with a Kansas middle school teacher last week, for now upholding her right to communicate honestly with parents about students’ use of a preferred transgender name at school.

Earlier this year, Pamela Ricard, a math teacher at Fort Riley Middle School, filed a federal lawsuit challenging a school policy that required her to conceal transgender students’ use of preferred pronouns in communicating with parents. She also complained that the policy’s stipulation that she use pronouns not matching students’ biological sex required her to lie, a violation of Biblical commandments and of her religious liberty.

In a ruling last week, a federal judge agreed, barring the school from disciplining Ricard if she discloses to parents a transgender student’s use of a preferred pronoun while the case is being litigated.

“[Ricard] would face the Hobbesian choice of complying with the district’s policy and violating her religious beliefs or abiding by her religious beliefs and facing discipline,” wrote U.S. District Judge Holly Teeter, a 2018 Trump appointee. Ricard was suspended for three days in March 2021 for violating the policy.

School officials urged the court to affirm the policy, but the judge concluded the school failed to meet a necessary legal test requiring it to have a compelling reason for its rule and to use the least restrictive means to address its concern.

“The court can envision that a school would have a compelling interest in refusing to disclose information about preferred names or pronouns where there is a particularized and substantiated concern that disclosure to a parent could lead to child abuse, neglect, or some other illegal conduct,” Teeter wrote. But she found that school officials had not demonstrated that the transgender students in Ricard’s class faced any such danger.

She also noted that school officials conceded that parents have a constitutional right to control the upbringing of their children—a right she called the “oldest of the fundamental liberty interests” recognized by the Supreme Court.

After the lawsuit was filed, the school district changed its policy to permit Ricard’s practice of referring to students by their preferred names while avoiding using pronouns inconsistent with students’ biological sex. So the court did not address Ricard’s claim that she would be improperly disciplined for failing to address a student by a preferred pronoun.

“Hopefully the district can begin creating policies that focus on educating children without forcing teachers to lie to parents and violating a parent’s right to know what is going on with their child,” said Joshua Ney, an Alliance Defending Freedom–affiliated attorney who represented Ricard.

School employees, like other government employees, are not free to say anything they want on the job, unless they are speaking on a matter of public concern, wrote UCLA law professor Eugene Volokh in a blog post about the case. Yet Volokh admitted, “It’s hard to figure out whether religious practices are ‘on a matter of public concern.’”

Virginia courts continue to wrestle with that issue. In March, the state Supreme Court agreed to hear the case of Peter Vlaming, a high school teacher fired for avoiding the use of personal pronouns to refer to a transgender student. In Loudoun County, Va., three teachers continue to challenge a school board policy forcing faculty members and students to use pronouns that students demand regardless of their biological sex.