Pronoun policy in schools violates First Amendment, court finds

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(The Center Square) – A federal appeals court reversed a lower court’s decision holding that an Ohio school district's policy on student pronouns did not violate First Amendment rights. 

Olentangy Local School District maintains a policy that bans individuals from referring to transgender and nonbinary students using pronouns that match their biological sex.

Mathew Hoffman, legal counsel for Alliance Defending Freedom, said this policy was put to the test by a parent who questioned whether their student could be punished for not obeying this rule.

“What the counsel for the school district said was that purposely referring to another student by using gendered language that that student knows is contrary to the other students identity would be an example of discrimination under board policy,” Hoffman said.

Defending Education appealed an initial ruling, which upheld the school district’s policy. A 17-judge panel struck down the lower court’s opinion 10-7 in November, holding that the school policies violated the First Amendment rights of affected students.

“[The school district] introduced no evidence that the use of biological pronouns would disrupt school functions or qualify as harassment under Ohio law,” the Sixth Circuit Court of Appeals opinion reads. “Our society continues to debate whether biological pronouns are appropriate or offensive – just as it continues to debate many other issues surrounding transgender rights.”

While the majority opinion held that the school’s policies violated First Amendment rights, a large coalition of judges dissented.

“The law delegates to our teachers and administrators the difficult work of defining, addressing, and, when possible, preventing bullying and severe harassment in public schools,” Judge Jane Stanch wrote in dissent of the majority opinion.

Stanch argued that there is a difference in expressing views on a subject and directly addressing or confronting an individual issue.

“Expressing views on immigration is different from telling a particular immigrant, ‘You don’t belong here,’ Stanch wrote. “By the same token, discussing sex and gender identity is different from using non-preferred pronouns to target or confront a particular student."

Hoffman said schools can still regulate harassment and bullying while not forcing students to comply with an individual’s preferred pronouns. He also said governments are not allowed to censor an individual for certain speech in a particular area.

“The First Amendment leaves the choice of how we want to speak to the individual,” Hoffman said.

While the court's majority found the school policy violated some students First Amendment rights, it affirmed the need to continue protecting transgender students from harassment and discrimination. 

"Nothing we say here forecloses the district from enforcing its anti-harassment policies against the abuse of transgender students just as it enforces those policies against the abuse of all other students," the majority opinion reads.