Full Sixth Circuit says Ohio school pronoun policy likely violates First Amendment

CINCINNATI (CN) — Students who refer to all classmates by their biological pronouns — whether they are transgender or not — do not disrupt the learning environment and cannot be forced to use preferred pronouns, the United States Court of Appeals for the Sixth Circuit ruled.

In a divided opinion split along party lines, the en banc Sixth Circuit overturned the decisions of both a federal judge and a panel of the appeals court in striking down the ban.

The Olentangy Local School District Board of Education, located in the northern suburbs of Columbus, came under fire in 2023 when a parent questioned whether its anti-harassment policy would allow for punishment of students who refuse to use the preferred pronouns of transgender classmates.

When the district confirmed students who use pronouns “contrary to the other student’s identity” could be disciplined, Defending Education filed suit in federal court for First Amendment violations.

U.S. District Judge Algenon Marbley, a Bill Clinton appointee, denied the conservative organization’s motion for an injunction, which prompted an appeal to the Sixth Circuit and arguments in front of a panel in 2024.

In July of that year, the panel sided with the school district and upheld Marbley’s ruling, but that opinion will be replaced with Thursday’s decision from the full Sixth Circuit.

Authored by U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, the opinion focused on the school district’s failure to meet the demanding “substantial interference” standard established by the landmark 1969 U.S. Supreme Court ruling in Tinker v. Des Moines .

In Tinker, a case involving students who chose to wear black armbands in protest of the Vietnam War, the nation’s high court established students do not abandon their First Amendment rights when they enter the schoolhouse and that schools cannot regulate speech unless it substantially disrupts or interferes with the learning process.

Using Tinker and other intervening cases as guideposts, Murphy delved into the thorny questions presented by any speech regulations imposed by schools, much less the pronoun policy at issue in the present case.

“On the one hand, schools may not ban student speech just because the audience will suffer ‘discomfort and unpleasantness’ from hearing ideas they dislike,” he said. “On the other hand, schools may ban student speech that resembles statements that generally fall outside the First Amendment because of their likely effects on the audience, like ‘fighting words.’”

Ultimately, Murphy and the conservative majority of the appeals court determined the burden of proof falls on the school district to show its “targeted ban” on certain speech passes constitutional muster.

“Unlike, say, a political diatribe about transgender rights in math class, the mere use of biological pronouns does not entail ‘aggressive, disruptive action.’ Nor does the school district suggest that such speech has ever disrupted any school activity in the past,” Murphy said.

Olentangy likened the use of incorrect pronouns to Hispanic students being told by classmates to “go back to Mexico!” but Murphy quickly distinguished the two scenarios.

He emphasized that Defending Education and the parents it represents do not seek to protect the use of “abusive invectives” but rather to allow all students to express their beliefs on biological sex and gender.

“Defending Education’s members want to use biological pronouns not because they seek to ridicule others but because they want to speak what they view as the truth. What evidence permits the school district to treat this speech as ‘abusive’? It points to none.”

Senior U.S. Circuit Judge Jane Stranch, a Barack Obama appointee, wrote a dissenting opinion and cited the rise of bullying and harassment — and reported suicides — of transgender and nonbinary students in recent years as proof that the policy is necessary.

Stranch emphasized to her counterparts on the other side of the political spectrum that the burden established by Tinker is not “insurmountable” and noted “the Supreme Court recently blessed the authority of schools to regulate bullying and harassment.”

She pointed out there is no evidence in the record to indicate the policy has been used to compel speech and cited the initial email exchange between administrators and parents as proof the district would never compel students to use “preferred pronouns.”

“Based on this record, the children of Defending Education’s members are unlikely to have sufficient interactions with transgender or nonbinary students that the use of last or first names will become a substantial burden. Consistently referring to a small handful of classmates by names rather than pronouns is not too heavy a burden to bear,” Stranch said.

Murphy pushed back against the idea that parents cede their disciplinary power to schools on hot-button issues like the one faced by the court in this case.

“When a political debate has fractured our society in such a significant way, the originalist case for giving schools greater power to regulate a student’s personal speech loses its force.

“It is implausible to suggest that parents with strong feelings on this sensitive issue have impliedly given schools the power to force their children to express viewpoints at odds with those they teach at home. How can we say that parents have delegated to schools the authority to dictate ’the boundaries of socially appropriate behavior’ on the issue when those boundaries continue to get worked into our broader society?” he concluded.

The en banc ruling requires the lower court to issue a limited, tailored injunction upon remand, “barring the district from punishing students for the commonplace use of biological pronouns.”

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, Senior U.S. Circuit Judge Alice Batchelder, a George H.W. Bush appointee, U.S. Circuit Judges Richard Griffin and Raymond Kethledge, also George W. Bush appointees, and U.S. Circuit Judges Amul Thapar, John Bush, Joan Larsen, John Nalbandian, and Chad Readler, all Trump appointees, concurred with Murphy’s opinion.

Stranch was joined in her dissent by U.S. Circuit Judges Karen Nelson Moore and Eric Clay, appointees of Clinton, and U.S. Circuit Judges Stephanie Dawkins Davis, Andre Mathis, Rachel Bloomekatz, and Kevin Ritz, all appointees of Joe Biden.

Neither party immediately responded to requests for comment.

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