Sixth Circuit tosses parent group’s challenge to Ohio school district’s pronoun policy

(CN) — A Sixth Circuit panel ruled in favor of a suburban Columbus, Ohio, school district on Monday, upholding its protections for transgender students.

The Olentangy Local School District's anti-harassment policies and code of conduct bar discrimination based on "sexual orientation and transgender identity." The national conservative group Parents Defending Education argued in their May 2023 lawsuit that these policies mandated the use of transgender students' preferred pronouns and violated the First Amendment.

The group asked a federal court in Ohio for an injunction on the policies. When U.S. District Judge Algenon Marbley, a Bill Clinton appointee, declined to issue an injunction last July, it turned to the Sixth Circuit. Seventeen GOP-dominated states backed the appeal, as did multiple conservative groups, religious organizations and the Ohio ACLU — which also argued the policies restricted students' speech.

The majority of a three-judge panel of the appellate court disagreed on Monday, finding Parents Defending Education hadn't convincingly argued the rules were worth a court blockage. The policies didn't "compel" certain speech, the circuit judges ruled, as students could simply avoid using pronouns when referring to transgender classmates. Since the rules also generally banned all gender or sexual identity-based discrimination, the court compared them to common school prohibitions on racial slurs.

"These and similar rules are commonly and constitutionally imposed, regardless of the extent to which they restrict students’ preferred messages, to protect the basic educational mission of public schools," U.S. Circuit Judge Jane Stranch, a Barack Obama appointee, wrote for the majority in a 25-page opinion. "At bottom, Parents Defending Education has failed to make a clear showing that the district’s prohibition on the intentional use of non-preferred pronouns unconstitutionally compels speech."

During oral arguments on the case in February, Olentangy's lawyer Bartholomew Freeze of the Columbus firm Freund, Freeze & Arnold also accused the plaintiffs of seeking a “carve-out" of the general anti-harassment policies for transgender students. Parents Defending Education claimed the policies enforced certain viewpoints, but Freeze argued that they were blanket protections for everyone. It would be discriminatory to allow students to be bullied because of their gender identity, he argued.

“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,” Freeze said.

Stranch agreed on Monday that the school policies "proscribe harassment, misconduct, and other disruptive speech across a variety of categories," not just for transgender students. She also wrote that there was a line between voicing controversial opinions on gender, and directly misgendering someone.

"Sharing controversial religious beliefs is different from describing a Mormon student as not a real Christian. By the same token, discussing sex and gender identity is different from using non-preferred pronouns to state that one’s transgender classmate is not really a girl," Stranch wrote.

U.S. Circuit Judge Stephanie Davis, a Joe Biden appointee, joined Stranch in the majority opinion. U.S. Circuit Judge Alice Batchelder, a George H.W. Bush appointee, penned her own 30-page dissent in which she argued cisgender students ought to be able to use "biological pronouns" when referring to their transgender peers. She likened being transgender to a political viewpoint, one which she found the school district's policies enforced.

"The First Amendment forbids the district from compelling students to use speech that conveys a message with which they disagree, namely that biology does not determine gender. The district court, like the district itself, chose to accept, adopt, and then enforce this viewpoint — thereby rejecting and prohibiting any student from expressing a contrary viewpoint," Batchelder wrote.

She also echoed an argument which Parents Defending Education's attorney John Connolly, of the Virginia firm Consovoy McCarthy, made in February — thus far, both said, Olentangy had not provided sufficient evidence to show students’ use of non-preferred pronouns resulted in disorder.

"The istrict 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," Batchelder wrote. "It admitted that, in the thirteen years the policy has been in place, it was 'unaware of anyone violating the policy so that it would need to be enforced.'"

Stranch, in the majority opinion, alternatively argued there was a great deal of evidence which showed misgendering could cause harm to transgender students. Parents Defending Education understood this, she ruled, as affidavits from the group's own members conceded the point.

"Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause," Stranch wrote. "The Parents Defending Education parent-members themselves 'understand' that use of non-preferred pronouns 'will be considered ‘insulting,’ ‘humiliating,’ ‘dehumanizing,’ ‘derogatory,’ and ‘unwanted’ to those who want to go by different pronouns.'"

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