School Policy Requiring Students to "Respect" "a Student's Gender Identity" Is Unconstitutionally Vague

From Parents Defending Education v. Linn Mar Community School Dist., decided Sept. 29 by the Eighth Circuit (Judge Steven Colloton, joined by Judges Duane Benton and Jane Kelly):

The disputed policy is entitled "Administrative Regulations Regarding Transgender and Students Nonconforming to Gender Role Stereotypes." The policy was adopted in April 2022 as Board Policy 504.13-R. The policy sets forth regulations for the District that "address the needs of transgender students, gender-expansive students, nonbinary, gender nonconforming students, and students questioning their gender to ensure a safe, affirming, and healthy school environment where every student can learn effectively." …

[One section of the policy] is headed "Names and Pronouns." The policy provides that a student has "the right to be addressed by a name and pronoun that corresponds to their gender identity." The fourth and final paragraph under this heading states that "[a]n intentional and/or persistent refusal by staff or students to respect a student's gender identity is a violation of school board policies," including "anti-bullying" and "anti-harassment" policies. The policy defines "gender identity" as "[a] person's deeply-held sense or psychological knowledge of their own gender." A student who violates the policy "shall be disciplined by appropriate measures, which may include suspension and expulsion." …

The challenged policy provides that an "intentional and/or persistent refusal … to respect a student's gender identity" is a violation of school board policies and subject to discipline. Parents Defending argues that the policy's requirement that a child "respect a student's gender identity" violates the First Amendment on several grounds.

We conclude that Parents Defending is likely to succeed on its claim that this portion of the policy is void for vagueness. A governmental policy is unconstitutionally vague if it fails to "provide adequate notice of the proscribed conduct" and lends "itself to arbitrary enforcement."

School disciplinary rules need not be as detailed as a criminal code that imposes criminal sanctions. But when a school policy reaches speech protected by the First Amendment, the vagueness doctrine "demands a greater degree of specificity than in other contexts." As such, "while a lesser standard of scrutiny is appropriate because of the public school setting, a proportionately greater level of scrutiny is required because the regulation reaches the exercise of free speech."

The District's policy does not provide adequate notice of what conduct is prohibited, because it fails to define the term "respect." As the district court acknowledged, "respect" has various meanings. Because the policy does not define or limit the term, it could cover any speech about gender identity that a school administrator deems "disrespectful" of another student's gender identity. A student thus cannot know whether he is violating the policy when he expresses discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable during a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams.

The District asserts that "respect" requires only the use of a student's preferred name and pronouns, and does not prohibit "general opinions" about gender identity. The district court concluded that the policy "appears" to be so limited, because the paragraph regarding refusal to "respect a student's gender identity" is set forth at the end of a section headed "Names and Pronouns."

We are not convinced that a student may rest assured that the policy is as narrow as the District asserts in litigation. Even assuming for the sake of analysis that the District could dictate a student's use of names and pronouns, the plain meaning of the policy is not so limited. The policy threatens discipline for a refusal to "respect a student's gender identity," not for a refusal to respect a student's preferred name or pronoun. The term "gender identity" is defined as "[a] person's deeply-held sense or psychological knowledge of their own gender"—a capacious concept that likely goes well beyond a name and a pronoun. That a defined term is used under a section heading does not change the meaning of the defined term.

The lack of clarity also makes the policy susceptible to arbitrary enforcement. The undefined term "respect" leaves the policy open to unpredictable interpretations, and creates a substantial risk that school administrators may arbitrarily enforce the policy. Without meaningful guidance, District officials are left to determine on an "ad hoc and subjective basis" what speech is "disrespectful" and subject to discipline, and what speech is acceptable.

For these reasons, we conclude that Parents Defending is likely to succeed on the merits of its First Amendment challenge to [this] portion of the policy …. Due to the vagueness of the policy, the case is remanded with directions to grant a preliminary injunction against enforcement of the portion of the policy prohibiting an intentional or persistent refusal "to respect a student's gender identity."

Judge Jane Kelly joined the opinion, but added a concurrence of her own

I agree that schools are limited in their ability to regulate speech that is "merely offensive to some listener." However, I write separately because the gravamen of this case is not the regulation of speech that is merely disagreeable or offensive to some listener. What is before the court are Linn-Mar Community School District's efforts to abide by the requirements imposed on it by federal and state law.

Title IX bars sex-based discrimination in public schools… Deliberate indifference to known acts of harassment can also "amount[ ] to an intentional violation of Title IX … when the harasser is a student rather than a teacher."

As part of their bar on sex-based discrimination, federal anti-discrimination statutes prohibit discrimination on the basis of gender identity…. The Iowa Civil Rights Act is even more explicit in prohibiting discrimination on the basis of gender identity.

Relevant here, Iowa law additionally bars school employees, volunteers, and students in Iowa schools from engaging in harassing or bullying behavior. This law is based on the General Assembly's finding, codified within Iowa's anti-bullying statute, "that a safe and civil school environment is necessary for students to learn and achieve at high academic levels. Harassing and bullying behavior can seriously disrupt the ability of school employees to maintain a safe and civil environment, and the ability of students to learn and succeed." The statute defines "harassment" and "bullying" "to mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of [several] conditions."

{These conditions are:

(1) Places the student in reasonable fear of harm to the student's person or property.

(2) Has a substantially detrimental effect on the student's physical or mental health.

(3) Has the effect of substantially interfering with a student's academic performance.

(4) Has the effect of substantially interfering with the student's ability to participate in or benefit from the services, activities, or privileges provided by a school.}

The statute lists "gender identity" as a "trait or characteristic of the student." …

One step the District has taken to meet its responsibilities under both federal and state law is to adopt Board Policies 103.1 and 103.1-R, which are anti-bullying and anti-harassment policies and regulations. Board Policy 103.1 was adopted by the District in 2007, and it bans "repeated or potentially repeated acts" or "ongoing conduct toward an individual based on any trait or characteristic of the individual which creates an objectively hostile school environment that," for example, "[h]as a substantial detrimental effect on the individual's physical or mental health." See Board Policy 103.1. This Policy explicitly includes "gender identity" as a "trait or characteristic," and thus explicitly bans bullying and harassment on the basis of gender identity.

The District was also responding to legislative mandates when it promulgated Board Policies 504.13 and 504.13-R. The Superintendent of the District explained that "[i]n order to meet the District's obligations under federal and state law … the District has provided … support and accommodations relating to gender identity." And Board Policies 504.13 and 504.13-R clarify and refine how to protect students from bullying, harassment, and discrimination on the basis of their gender identity. For example, in the portion now challenged on First Amendment grounds, Board Policy 504.13-R recognizes the right of "every student" "to be addressed by a name and pronoun that corresponds to their gender identity." … It also lays out steps that schools and administrators must follow to secure equal rights for all District students, including the prohibition against discrimination by way of repeated or intentional misgendering.

Nevertheless, I concur in the outcome of this case. The constitutional problem with Board Policy 504.13-R is that it proscribes acts or conduct that intentionally or persistently do not "respect a student's gender identity," and fails to provide meaningful guidance as to what falls within the scope of the word "respect." In doing so, Board Policy 504.13-R is likely too vague about what speech it proscribes, making it potentially susceptible to arbitrary enforcement.

But it is important to note that the problem with Board Policy 504.13-R is not that it seeks to regulate opinions about issues related to gender identity or "merely offensive" speech. It does not. Rather, Board Policy 504.13-R seeks to "ensure a safe, affirming, and healthy school environment" where every student, including those of all gender identities, "can learn effectively." The District may have used language that is insufficiently tailored to its effort to achieve this goal. But the goal itself is not only appropriately inclusive and well within the scope of the District's educational mission. It is mandated by law.

Cameron Thomas Norris argued for appellant; Alan R. Ostergren, John Michael Connolly, and James Hasson were also on appellant's brief.