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“…it is ‘certainly not enough that the speech is merely offensive to some listener.’ A school district cannot avoid the strictures of the First Amendment simply by defining certain speech as ‘bullying’ or ‘harassment.’”
–JUDGE STEVEN M. COLLOTON
A three-judge panel for the U.S. Court of Appeals for the Eighth Circuit has ruled that an Iowa school district’s policy that would suspend or expel students for “[a]n intentional and/or persistent refusal…to respect a student’s gender identity” is too vague and likely violates the First Amendment.
Linn-Mar Community School District updated its policies on transgender and gender-nonconforming students to “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.” The new policies went into effect in April 2022.
One part of the policy that was challenged in court by parents was that of gender support plans. Under the policy, school staff were able to place interested students on gender support plans, which determine how a student’s chosen gender identity would be affirmed at school. School employees would not disclose the information to parents and a student’s wishes would be prioritized over the parents’.
Parents also challenged the school’s requirement that all students “respect” a student’s chosen gender identity.
The parents of some of the students claimed that their children were afraid they would be disciplined if they expressed their beliefs about gender identity or their discomfort with sharing a bathroom or locker room with a student of the opposite sex who claimed to be transgender.
A district court denied the parents’ request for an injunction, they appealed to the Eighth Circuit, which reversed the ruling.
After the appeal was filed, the Iowa legislature passed Senate File 496, which makes it illegal for a school to disseminate “false or misleading information to the parent or guardian of a student regarding the student’s gender identity or intention to transition to a gender that is different than the sex listed on the student’s official birth certificate.”
Additionally the law requires that if a student requests to be treated as a different gender from their sex, the school must notify the student’s parents.
Because of this law, the court ruled that an injunction against this part of the policy was no longer needed and rendered that claim moot.
Regarding the plaintiffs’ free speech claims, Judge Steven M. Colloton, writing for the majority, stated,
“Although it is true that schools have an interest in regulating speech that involves an ‘invasion of the rights of others,’ it is ‘certainly not enough that the speech is merely offensive to some listener.’ A school district cannot avoid the strictures of the First Amendment simply by defining certain speech as ‘bullying’ or ‘harassment.’”
The court also ruled that the policy was too vague. The district claimed that the policy only requires that students and employees use a student’s preferred name and pronouns. The court disagreed, saying the text of the policy could include more than that. Although they declined to rule on whether the district could enact a policy that required students to use another student’s preferred pronouns or name, the Eighth Circuit nonetheless wrote,
“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 court ruled that the parents are likely to succeed on the merits of their case and issued a preliminary injunction against the portion of the school’s policy “prohibiting an intentional or persistent refusal ‘to respect a student’s gender identity.’”
The case is similar to another in Massachusetts in which attorneys for middle school student Liam Morrison have requested that the U.S. Court of Appeals for the First Circuit rule that Nichols Middle School violated the Constitution when it barred Morrison from wearing a shirt that read, “There are only two genders.”
In 1943, the U.S. Supreme Court ruled in West Virginia State Board of Education v. Barnette,
“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 politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Yet that is what schools continue to do by trying to force students to “respect” gender identity ideology. The very requirement that the district admitted of mandating that students and staff use a student’s preferred pronouns violates this key doctrine.
In reality how would that policy play out?
Likely if these students had spoken up about their views, they would have been punished. In fact, just believing that there is the possibility of punishment is enough to ensure compliance among most schoolchildren, who are a uniquely captive audience subject to a school’s authority and approval. As such, they can be subtly pressured, manipulated, or outright intimidated into speaking ideas or words they don’t believe.
No one wants to see gender-confused children bullied by other children, but that can be handled by a policy against harassment in general. Making policies that command students to affirm someone’s gender identity is an attempt to compel speech and force them to express the belief that a person can change their biological sex.
The court’s decision is a win for free speech as it affirms the right of students to speak their beliefs on the issue of gender, but it doesn’t go far enough. No one should be forced by the state to express beliefs and values they disagree with — even schoolchildren.
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