Ohio students barred from “misgendering,” appeals court rules

Proper use of pronouns used to be a subject consigned to grammarians—but no more. As an increasing number of young people identify as a gender not consistent with their biological sex, more schools are instituting policies barring so-called “misgendering.”

In a Monday ruling, a divided panel of the 6th U.S. Circuit Court of Appeals upheld an Ohio school district’s policies that bar public school students from intentionally using non-preferred pronouns to refer to their classmates.

Writing for a two-judge majority, Circuit Judge Jane Stranch concluded that the parents of students who challenged the policies were unlikely to succeed on their argument that the policies compelled speech in violation of the First Amendment. Stranch, a Barack Obama appointee, also rejected parents’ claims that the policies discriminated based on viewpoint and were overbroad—that is, swept so broadly as to restrict even legitimate speech.

Parents Defending Education (PDE) sued the Olentangy Local School District, the state’s fourth largest, in May 2023 over three pronoun-related policies that broadly forbid words or conduct, whether on or off campus, that affect the physical or mental well-being of students. The policies characterized speech as harassment if the speaker did not use a student’s preferred pronouns.

The organization, self-described as a “national grassroots organization working to reclaim our schools from activists promoting harmful agendas,” filed the lawsuit on behalf of parents of students who said their children wanted to express their belief that sex is fixed at birth.

In written testimony filed with the trial court, parents said their children wanted to communicate that belief by “using biologically accurate pronouns,” including during times when classmates who identify as transgender would be present. The court denied PDE’s motion to place a hold on enforcement of the policies while litigation progressed.

In a lengthy dissent, Circuit Judge Alice Batchelder, a George H.W. Bush appointee, noted the parents’ position was that “people are either male or female, and there is no such thing as ‘gender transition’ … and a public school cannot force their children to pretend it is a real thing. Agree or disagree, but that is their position.”

Stating that “the speech at issue was about the existence of gender transition, not just a debate about gender-identity issues or misgendering,” Batchelder concluded that the district sought to enforce a viewpoint. By requiring preferred pronouns, the district had mandated that “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.”

Batchelder also said that the district unconstitutionally compelled students to speak a message it favored. “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,” she wrote.

The judges diverged not so much on the law as on the application of legal principles to the facts. For the majority, since the policies gave students the option to refer to other students by first names only or not at all, the school did not compel speech or violate students’ consciences.

But for Batchelder, the touted options did not save the policies. “This awkward adjustment (of using no pronouns) requires the speaker to recognize and accept that gender transition is a real thing and that it applies to these particular students,” she said.

The two-justice majority did not see any viewpoint discrimination since students were free to debate issues surrounding gender transition. But Batchelder said that was analogous to “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!”

Both the majority and dissent acknowledged that students’ free speech rights do not end at the schoolhouse door. They agreed that the test set out in a 1969 Supreme Court ruling, Tinker v. Des Moines Independent Community School District, applied.

In Tinker, a majority of the court ruled against a school district that sought to discipline students who wore armbands to school to protest the Vietnam War. To justify the suppression of speech, the majority said that school officials must be able to prove that the speech at issue would “materially and substantially interfere” with the operation of the school. It concluded that the school district’s actions stemmed from fear of possible disruption rather than any actual disruption.

In Monday’s decision, the majority ruled that school officials met that test by pointing to a study that suggested misgendering would have negative effects on students and parents’ admissions that some students might find misgendering humiliating or offensive. “It takes no great inferential leap—actually no leap at all” to “reach the common-sense conclusion” that not using someone’s preferred pronouns would disrupt the educational process, the majority concluded.

Batchelder disagreed, noting that the Tinker test sets a high burden for the school district. “The district confessed at oral argument that there has never been a substantial disruption in the district from a student’s referring to a transgender student by a biological pronoun,” she wrote. Nor, she said, was the district aware of any violation of the policies in the 13 years they had been in force.

“Because the district did not show that its policies were based on any specific and credible fear of a substantial disruption, its policies fail Tinker’s ‘demanding standard,’” Batchelder concluded.

Parents may have lost this round of litigation, but the case is far from over. In a statement emailed to WORLD after the ruling, PDE President Nicole Neily vowed to fight on. “This is not the end of the road,” said Neily.

In a July 30 filing with the court, PDE’s attorneys said they would ask the full 6th Circuit to reconsider the ruling and asked the court for permission to file its petition for that rehearing no later than Aug. 26.

For now, students in the district must abide by the policies. That means they must use preferred pronouns or students’ names—or, as the court invited, say nothing at all.