Ohio students don’t have freedom of speech, federal court rules in ‘misgendering’ lawsuit

A federal appeals court has ruled against freedom of speech for students in Ohio.

The Sixth U.S. Circuit Court of Appeals ruled 2-1 the Olentangy Local School District (OLSD) may enforce its discipline policy for students who “misgender” a classmate – even on a student’s personal device.

The policy requires students to use preferred pronouns, or no pronouns at all, when addressing transgender students. Failure to comply can result in suspension or even expulsion.

In Judge Jane Stranch’s majority decision July 29, she rules the district can restrict a student’s speech if it deems that speech harmful or distracting to the educational process.

“The district is entitled to recognize that speech about specific students’ identities is particularly harmful and likely to disrupt the educational experience, and to regulate that speech accordingly,” the decision reads.  

The lawsuit, filed by Parents Defending Education (PDE) in May 2023, sought an injunction against the policy, alleging it violated students’ First and 14^th Amendment rights. 

“Olentangy’s ‘harassment’ policies show a deep contempt for the constitutional rights of its students and families,” PDE Vice President Caroline Moore said when the suit was filed. “Public schools cannot force students to speak in a way that supports a viewpoint contrary to their deeply held beliefs – nor may schools follow students home to police their speech at all hours of the day on their personal devices.  

“But Olentangy has enacted a series of overbroad ‘anti-harassment’ policies under the guise of ‘inclusivity’ that flout basic constitutional rights both in and outside of the classroom.” 

The court ruled PDE couldn’t prove the policy amounted to “viewpoint discrimination” because it applied to “harassment, misconduct, and other disruptive speech across a variety of categories.” 

The decision dismissed PDE’s compelled speech argument by saying students could “communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns.” 

However, in her dissenting opinion Judge Alice Batchelder disagrees on both points. 

“As I understand it, the plaintiffs’ position – based on their scientific (biology, physiology, and genetics) and religious beliefs – is that biological gender is immutable,” she writes. “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.” 

Batchelder further argues not only does OLSD have its own viewpoint, it’s attempting to force students to adopt that viewpoint through the policy at issue. 

“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.” 

Finally, Batchelder characterizes as nonsensical her fellow judges’ conclusion that the district hadn’t expressed an ideology. 

“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.” 

Nicole Neily, PDE president and founder, expressed disappointment, but said it wasn’t “the end of the road.” 

“As Judge Batchelder persuasively explained in dissent: ‘The First Amendment forbids the district from compelling students to use speech that conveys a message with which they disagree, namely that biology does not determine gender.’ PDE will seek further review of this decision.”