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‘[T]he mere use of biological pronouns does not entail ‘aggressive, disruptive action’
The U.S. 6th Circuit Court of Appeals ruled this past week that an Ohio school district cannot punish students who refer to their transgender peers by biological pronouns.
The Columbus Dispatch reports the court determined by a party-line 10-7 vote in Defending Education v. Olentangy Local School District Board of Education that the defendant “did not demonstrate that the use of the pronouns to refer to transgender and nonbinary students would ‘materially and substantially disrupt school activities or infringe on the legal rights of others in the school community.'”
Such is a direct reference to the historic 1969 Tinker decision which dealt with students wearing black arm bands at school to protest the Vietnam War.
The November 6 en banc decision overturns a federal judge’s ruling, as well as that of a three-judge 6th Circuit panel.
“Our society continues to debate whether biological pronouns are appropriate or offensive — just as it continues to debate many other issues surrounding transgender rights,” the court’s majority wrote, authored by Judge Eric Murphy.
“The school district may not skew this debate by forcing one side to change the way it conveys its message or by compelling it to express a different view.”
Murphy, a Trump appointee, added “Unlike, say, a political diatribe about transgender rights in math class, the mere use of biological pronouns does not entail ‘aggressive, disruptive action.’”
The majority noted its ruling does not prevent the district from protecting trans and non-binary students from harassment, “just as it enforces those policies against the abuse of all other students.”
The Olentangy district had argued that, under its policy, students who purposely “us[ed] gendered language they know is contrary to the other student’s identity” were engaged in harassment and discrimination.
It compared the use of unwanted pronouns to “Hispanic students being told by classmates to ‘go back to Mexico!’” Courthouse News Service reports.
The plaintiffs claimed students had begun “self-censoring” out of fear school officials would punish them. They further argued the district’s policy was overly broad as it also applied to students “on their cellphones or other devices while […] not at school.”
In her dissent, Obama appointee Jane Stranch defended Olentangy, citing increased instances of bullying, harassment, and suicides of trans and non-binary students. She also noted the Supreme Court had “recently blessed the authority of schools to regulate bullying and harassment.”
Senior Counsel John Bursch of the Alliance Defending Freedom (which filed an amicus brief on behalf of the plaintiffs) said of the ruling “First Amendment rights don’t disappear behind school doors—whether you’re a teacher, parent, or student. For many, the choice of pronouns communicates their belief that sex is immutable, and to use pronouns or names that reflect a gender identity inconsistent with sex violates their core convictions and tells a harmful lie.”
MORE: Teacher forced to resign for not using ‘preferred’ pronouns appeals, gets case heard by jury
