The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Sixth Circuit Will Rehear En Banc Case Involving High School's Pronoun Policy
The order granting rehearing was just filed today, so the court will reconsider the case in the coming months. Here's an excerpt from the now-vacated panel majority opinion (Judge Jane Stranch, joined by Judge Stephanie Davis), which deals with school policies that "prohibit students from repeatedly and intentionally using non-preferred pronouns to refer to their classmates":
Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) … does not require school authorities to wait for a disturbance before regulating speech, nor does it "require certainty that disruption will occur." 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. The PDE 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."
PDE also attached to its preliminary injunction motion an article containing a therapist's explanation that students who "have been misgendered all day" often become "traumatized," "humiliated," and "cry after school." This evidence dovetails with a study, cited by the district court, collecting literature on the "measurable psychological and physiological harms" that can be caused by use of non-preferred pronouns. And it supports the conclusion that transgender students experience the use of non-preferred pronouns as dehumanizing and that, as a result, the repeated use of such pronouns can have severely negative effects on children and young adults….
PDE … asserts that by preventing the use of non-preferred pronouns, the District's policies unconstitutionally discriminate based on viewpoint. Depending on the speech's forum, the government may sometimes enact content-based restrictions on speech, but "viewpoint discrimination"—that is, "regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction"—is typically "presumed impermissible." Rosenberger v. Rector (1995).
Although the Supreme Court has suggested that "it might well be appropriate to tolerate some targeted viewpoint discrimination in [the] unique setting" of public schools, our precedent requires that restrictions on student speech be consistent "with both the Tinker standard and Rosenberger's prohibition on viewpoint discrimination." As a result, a school may engage in content discrimination, which is "permissible if it preserves the purposes of" the forum (e.g., prohibiting disruption), but not "viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations" (e.g., prohibiting selected forms of disruption based on the ideology expressed).
Applying this standard in the public school context, we have explained "that a blanket ban on the use of `odious racial epithets' by 'proponents of all views' constitutes mere content-based regulation, while a ban on the use of racial slurs by one group of speakers but not 'those speakers' opponents' constitutes viewpoint-discrimination." Likewise, a dress code that bars all clothing exhibiting "symbols which 'cause[] disruption to the educational process'" is a permissible content-based regulation, whereas one banning certain "racially sensitive symbols and not others" is impermissible viewpoint discrimination, In other words, schools may permissibly enact and enforce blanket bans on particularly disruptive symbols or speech, but may not regulate speech as a means of silencing a particular viewpoint.
The challenged Policies here proscribe harassment, misconduct, and other disruptive speech across a variety of categories. That structure, and the District's position that students may communicate their belief that sex is immutable through means other than the use of non-preferred pronouns, indicate that the District is not attempting to prohibit any viewpoints. Nor is there any evidence, on this preliminary injunction record, that the District's enforcement of the Policies is different regarding gender identity as compared to any other protected characteristic….
And from Judge Alice Batchelder's dissent:
As I understand it, the plaintiffs' position—based on their scientific (biology, physiology, and genetics) and religious beliefs—is that biological gender is immutable, people are either male or female, and there is no such thing as "gender transition"; that is a made-up thing, imaginary or make believe, and a public school cannot force their children to pretend it is a real thing. Agree or disagree, but that is their position.
In that light, the speech at issue here concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering. The Olentangy Local School District's view—contrary to Parents Defending Education's—is that there is such a thing as gender transition; it is real, worthy of recognition and, in fact, worthy of protection in the public schools. Why else would the District require preferred pronouns, prohibit biological pronouns, or press the odd compromise of no pronouns at all? Therefore, the governmental authority (the District) has taken a clear position (viewpoint) in which all of its captive subjects (students) must affirm the existence of gender transition (either through words or silence), regardless of their own view. This is a viewpoint-based regulation of speech.
And in this light, it is also compelled speech—the students' only options begin from the District's viewpoint that gender transition is a real thing; from there the students must conform their own expression around that viewpoint. The Constitution prohibits this. See W. Va. State Bd. of Educ. v. Barnette (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in … matters of opinion or force citizens to confess by word or act their faith therein."); Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) (schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate").
The majority proceeds from this premise as well, concluding that there is no compelled speech because students are not compelled to use preferred pronouns; they can comply by avoiding the use of otherwise ordinary and commonplace biological pronouns and by instead referring to these particular classmates by name only, using no pronouns at all. Obviously, this awkward adjustment (of using no pronouns) requires the speaker to recognize and accept that gender transition is a real thing and that it applies to these particular students.
The majority also concludes that there is no viewpoint problem here because the District has expressed no view about whether gender transition is good or bad, and the students remain free to discuss or debate it. That is like saying the school has taken no viewpoint on ghosts when it has students debate whether ghosts are good or evil. But the plaintiffs' point would be that there is no such thing as ghosts! And the school has no business forcing children to believe in ghosts. Again, whether you agree or disagree, PDE's position is that gender transition is fictitious, just like ghosts…. [And t]he lead Sixth Circuit case on viewpoint-based speech regulations confirms that a viewpoint-specific ban cannot survive regardless of whether it meets Tinker's substantial-disruption test.
