Judges on the Sixth Circuit Court of Appeals ruled Thursday it’s likely unconstitutional for an Ohio school to punish students who decline to refer to transgender classmates by their preferred pronouns.
The judges said Olentangy Local Schools, a Columbus-area district, failed to demonstrate that allowing students to refer to their classmates by the wrong pronoun would “materially and substantially disrupt” the classroom, as Vietnam War-era Supreme Court precedent requires.
And forcing students to call others by pronouns they disagree with violates students’ free speech rights, the judges said.
“Any ordinary person who learned of the School District’s anti-harassment policies would believe that it has engaged in this type of viewpoint discrimination,” the opinion states.
They said the school didn’t show that referring to a transgender student by the wrong pronouns amounts to bullying or harassment, which would warrant school intervention. However, the ruling isn’t final and sends the case back to lower courts, so schools could still do so in the future.
But the judges also said questions around transgender rights belong in the “political arena” and not the courts or by the school taking a side.
Conflict is largely hypothetical
In 2023, an unidentified parent, describing their child as “devoutly Christian,” emailed the school to say their child believes that only two “biological genders” exist “and that those genders are decided at conception by God.” The parent asked whether the school’s policy, which requires students to respect transgender students’ wishes on which pronouns to use, would apply. The school said it would.
Thus, a lawsuit was brought by Parents Defending Education, a nonprofit legal advocacy based out of the Washington D.C. area that says it operates to fight “educational bias” and “reclaim our schools from activists promoting harmful agendas.” The parents acting as plaintiffs are identified as Parents A, B, C and D.
The allegations are largely hypothetical. No transgender student was ever misgendered, so the ‘devoutly Christian’ student was never disciplined.
The plaintiffs say the school infringed on their children’s free speech rights by forcing them to use pronouns at odds with their political views about transgender people.
The school and backers of transgender rights have argued there’s an inherent disrespect and lack of courtesy in students referring to transgender students by an undesired pronoun.
A U.S. District court judge sided with the school and rejected a motion from the plaintiffs to freeze the school policy while the lawsuit plays out. A three-judge panel with the Sixth Circuit Court of Appeals agreed. However, the plaintiffs sought and received an “en banc” appeal – meaning all judges on the appellate court, which oversees Ohio, Kentucky, Tennessee and Michigan, would hear and vote on the case.
About 2 in 3 judges in the Sixth Circuit were appointed by Republican presidents, according to a count from Demand Justice.
An Olentangy School’s spokeswoman couldn’t be reached for comment Thursday evening.
Case comes amid broader legal fight against transgender rights
The ruling Thursday comes within a broader Republican-led movement seeking to roll back legal recognition of transgender people.
In Ohio, lawmakers in the past few years have eliminated children’s access to puberty blockers and other commonly prescribed transgender care. Other laws have eliminated transgender athletes’ ability to compete in women’s sports, which bathrooms they can use, or for Medicaid to cover the costs of transgender health care.
Also on Thursday, the U.S. Supreme Court allowed an order from the Trump administration to take effect that require passports to adhere to the sex on a transgender person’s birth certificate, not that of their assumed gender identity, The New York Times reports.