(CN) —A suburban Columbus school district defended its anti-harassment policy before the Sixth Circuit Thursday, arguing that requiring students to use their transgender peers’ preferred pronouns is a permissible restriction of speech in K-12 education.
The Olentangy Local School District’s policy faces a challenge from a parents group, Parents Defending Education, who claim that a rule barring intentional misgendering of other students is an impermissible viewpoint-based restriction of their children’s speech.
“The parents, and the students, believe that these are their First Amendment rights,” attorney Michael Connolly of the Virginia firm Consovoy McCarthy told a three-judge panel. “Just because speech is merely offensive does not mean that the school has the right to punish the speech.”
The nonprofit parents group seeks to overturn a federal judge’s denial of their request for a preliminary injunction halting enforcement of two anti-harassment policies and the district’s code of conduct, which bar discriminatory harassment “based on… sex (including sexual orientation and gender identity)” in school and on students’ personal communication devices, and include intentional misgendering under the umbrella of harassment.
Characterizing the policies as a “speech code,” the parents group argued that requiring students to use pronouns that did not conform with biological sex unlawfully prohibited them from expressing their view that gender is immutable, and constituted compelled speech.
The school district, represented by Bartholomew Freeze of the Columbus firm Fruend, Freeze & Arnold, argued that the rules were permissible protections of students’ well-being, meant to prevent disorder and disruption to students’ education.
“If you look at the policies … they are neutral on their face,” Freeze said. “There is no viewpoint distinction here. A student is harassed — under the terms of the policy, based on their gender or gender identity, sex, any of the protected classes would be entitled to protection.
“In the same vein, if someone had a different perspective, for instance … the plaintiff’s members’ children, who believe that their religion dictates that they believe sex is immutable, and those children were harassed — under the definition of the policy, they would also be entitled to protections,” he said.
Freeze accused the plaintiffs of seeking a “carve-out, where all students are protected for harassment under that policy except for transgender students who are harassed because they are transgender.
“That, in itself, would be a viewpoint discrimination perspective, if the district protected everyone but transgender students, but again this policy is designed specifically to protect all students,” he said.
Connolly took issue with the school district’s reliance on the “substantial disorder” carve-out of Tinker v. Des Moines, where the Supreme Court found that schools could not bar speech or conduct that does not disrupt classwork or intrude upon the rights of others. The district, Connolly said, had not provided any evidence that students’ use of non-preferred pronouns had created any disorder at all.
Judge Stephanie Davis, a Joe Biden appointee, prodded Connolly on whether that was strictly necessary. “What you’re saying, Mr. Connolly, is that the school was required to wait until it had amassed a number of incidents of actual disruption before it could demonstrate that it would substantially disrupt the educational environment?”
“No, that’s not correct,” Connolly replied, “but they needed to come to a reasonable conclusion, with evidence, predicting that this would happen.”
Freeze faced a similar line of questioning from Judge Alice Batchelder, a George H.W. Bush appointee. She asked what accommodations the district offered for students who did not wish to use their transgender peers’ preferred pronouns.
“That’s a good question,” Freeze responded, “because as we are here on pre-enforcement, we have never had an instance, since 2013 when these gender identity protections were added, of having a student request an accommodation or be punished under this policy.”
One option, he said, might be requesting that objecting students use a peer’s last name to discuss them.
On rebuttal, Connolly gave no credence to that proposal. “The accommodation they’re offering isn’t really an accommodation,” he said. “They’re just saying ‘don’t use pronouns.”
Citing the case of a college professor disciplined for refusing to call students by their preferred pronouns, Connolly argued that pronoun use itself had become an expression of viewpoint.
“Meriwether has a long discussion where it talks about the importance of pronoun uses in this heated debate that is happening across the country. There is one side, and there is another side,” he said. “The accommodation that the school is offering is just ‘don’t talk about it at all. Period.’ And that’s not an accommodation.”
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