The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: "When Teachers Misgender: The Free Speech Claims of Public School Teachers," by Prof. Caroline Mala Corbin (Miami)


Just published, at 1 Journal of Free Speech Law 615 (2022); from the Introduction:

This Article argues that public school teachers do not and should not have a free speech right to deliberately misgender students in the classroom. Transgender students are already a vulnerable at-risk population, and studies show that misgendering at school increases that risk. Misgendering also deprives trans­gender students of an equal educational opportunity. For a teacher to intentionally misgender students subject to their authority is not only unprofessional but potentially unlawful under federal and state laws banning discrimination in education.

As a matter of doctrine, how teachers address their students in the classroom during class should be considered speech pursuant to their official teaching duties. Under Garcetti, it is essentially government speech with no free speech protection. Granted, the Garcetti Court acknowledged the possibility of an academic freedom exception, but as a descriptive matter it is unlikely that academic freedom covers elementary and high school teachers' deliberate misgendering of the students in their care. As a normative matter, the cloak of academic freedom should not protect classroom speech that is tangential, inaccurate, and harms students, particularly marginalized ones.

In any event, misgendering speech fails the other two requirements for a government employee speech claim: While questions of gender identity are issues of public concern, the teacher's use of pronouns to address a specific student is not a discussion of it. Finally, a teacher's deliberate misgendering is highly disruptive to the school's responsibilities and goals. It is a hindrance to both educating students in the designated curriculum and training them for citizenship. Moreover, the additional responsibilities a school has with regard to the young impressionable students entrusted to its care and captive to their teachers' speech means that its interests in providing an environment where those students can learn and thrive outweigh the slight free speech value of the teacher's misgendering.

We have many more articles coming in the next several weeks.