Ohio parents challenge school pronoun rules

Attorneys argued over pronouns in a federal appeals court in Cincinnati on Thursday, as an organization representing parents attested that a school district’s policies barring students from “misgendering” each other was unconstitutional.

Parents Defending Education asked the 6th U.S. Circuit Court of Appeals to overturn a district court’s ruling that denied a request to block policies of the suburban Columbus Olentangy Local School District. In July 2023, Chief U.S. District Judge Algenon Marbley ruled that, while the school district’s policies compelled speech, they were reasonable to prevent substantial disorder in the school environment.

A substantial portion of the Virginia-based nonprofit’s argument centered on a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District. In that case, the court concluded that a school policy barring the wearing of armbands in school to protest the Vietnam War was unconstitutional. A 7-2 majority ruled that to justify the suppression of speech, school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school.

That test was not met here, Michael Connolly, attorney for Parents Defending Education, told the three-judge panel. “If the school wanted to get at severe and pervasive harassing and bullying conduct, they’re allowed to do that, but what they can’t do is what they did here, which is write a sweeping policy that just says that at all times nobody can ever use pronouns that are not preferred by another student,” he argued. Pressed on the point, Connolly said that the school doesn’t have to wait until disruption occurs before it restricts speech, but it has to come to a “reasonable conclusion.”

School district attorney Bartholomew Freeze countered that no student had ever requested a religious accommodation not to use preferred pronouns and no student had ever been punished for violating the policy.

“So there’s no evidence of substantial disruption, because surely you don’t think that there’s never been an instance where there’s been a misuse of a pronoun?” asked one judge. “Which would kind of indicate that there is no potential for substantial disruption caused by the use of wrong-gendered pronouns.”

Freeze argued that students could not know the biological sex of other children. “So kids in elementary school don’t know that the kid they are playing kickball with is just like them—namely, a boy, or just like their sister?” asked one judge.

“They may have a pretty good idea, but if we are limiting the concept of biological sex specifically to genetics or genitalia appearance, then that would not be something a typical grade-schooler would know,” Freeze suggested. He said that what parents sought was special treatment—a carve-out from a neutral policy that bars any student from harassing another student.

But Connolly rejected the suggestion that an accommodation allowing students to use no pronouns would be adequate, pointing out that pronoun use itself had become an expression of viewpoint—one part of a heated debate over transgender policies sweeping the country. “The accommodation that the school is offering is just ‘don’t talk about it at all. Period.’ And that’s not an accommodation,” he said.

Connolly returned to the Tinker test, hammering home that there was simply no evidence that not using preferred pronouns would disrupt school operations. “Nobody is saying that the school district can’t ensure a safe and healthy environment for students, but it can’t do what it did here, which is just enact a sweeping, broad policy prohibition against any speech without coming forward with the evidence and the proof that is needed for the government to prove its burden,” he said.

The federal appeals court—which hears appeals from federal court rulings in the states of Kentucky, Michigan, Ohio, and Tennessee—last considered the compelled use of pronouns in a 2021 case, Meriwether v. Shawnee State University. A unanimous panel sided with a Christian professor’s right to not address students in class by pronouns not consistent with their sex.

Ernie Walton, an assistant professor at Regent University School of Law, doubts that a court that upheld a professor’s right not to use students’ preferred pronouns will take a different view when it comes to a student’s refusal to use preferred pronouns. “A professor’s or teacher’s speech is going to potentially ‘damage’ a child more than a fellow student, right?” said Walton, suggesting there is even more reason in this case to side with the parents.

Nor does Walton buy the school’s argument that its anti-harassment policy is neutral. “The word ‘harassment’ is just a smokescreen to cover up the effort to figure a way out of Supreme Court rulings that over and over again say that the First Amendment protects offensive speech,” he said. “It’s just a clever way to say, ‘We want to ban offensive speech.’”

The court is expected to rule on the appeal by summer.