An interesting free speech claim involving gender ideology in schools made its way to the Sixth Circuit and tomorrow will be argued en banc. Parents Defending Education v. Olentangy Local School District Board of Education arose from a challenge to an Ohio school district’s policy to punish disfavored speech about gender identity. Specifically, the district’s anti-harassment policy barred a student from “purposefully referring to another student by using gendered language they know is contrary to the other student’s identity.”

In its lawsuit against the district, Parents Defending Education (PDE) noted that its parent and student members believed that biological sex is immutable. The children accordingly want to “express[] their belief that sex is immutable . . . by using biologically accurate pronouns”—matching the sex assigned at birth—“repeatedly and at all times,” and also to “otherwise explain[] their views” regarding gender identity. But school policy made them fearful they would be punished for such speech. This, argued PDE, ran afoul of the First Amendment on several grounds, most prominently its prohibition of compelled speech and viewpoint discrimination.

The district court refused to issue a preliminary injunction against the school district. On appeal, the Sixth Circuit affirmed with a 2–1 split. Judge Jane Stranch (an Obama appointee) pointed out that speech “that materially disrupts classwork or the order of the school, or invades the rights of others” may be regulated and that the challenged policy fell into that category. But the Supreme Court has warned about letting vague fears of classroom disruption be used to stamp out the ability of students to express controversial opinions in schools. It had invalidated a school’s ban on students wearing black armbands to protest the Vietnam War in Tinker v. Des Moines Independent Community School District (1969), noting in its opinion the lack of a record to reasonably support a forecast of such disruption of school activities. While Stranch conceded that Tinker’s standard to regulate student speech was “demanding,” she felt it was met here by the “psychological and physiological harms” that could result from the “use of non-preferred pronouns.”

Another Supreme Court decision with substantial relevance to the case is the compelled-speech landmark, West Virginia State Board of Education v. Barnette (1943). There public school officials were barred from forcing students with a religious objection to salute the flag or recite the Pledge of Allegiance. The Sixth Circuit panel opinion conceded that “[t]he intentional use of preferred or non-preferred pronouns . . . represents speech protected by the First Amendment” but declined to hold the speech at issue to be compelled because students were free to instead use first names—and to choose not to “refer to their transgender classmates at all” outside instructional time. As for the viewpoint discrimination claim, the court drew from Sixth Circuit precedent allowing that a school district “may constitutionally distinguish between divisive and non-divisive speech, and choose to regulate the former but not the latter.”

Judge Alice Batchelder dissented, and her opinion demonstrates why the majority should have taken more seriously two landmark Supreme Court decisions that had gone against school officials. The scientific and religious beliefs at issue, she pointed out, held “that biological gender is immutable, 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.” The question of speech “concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering.” Besides clearly being “a viewpoint-based regulation of speech,” the district policy “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.”

That runs afoul of Barnette, and the alternative given to children “of using no pronouns” still “requires the speaker to recognize and accept that gender transition is a real thing and that it applies to these particular students.” Besides, the school district had conceded in district court that its policies “require the speaker to affirm a certain belief” according to the analysis in Meriwether v. Hartop (2021), where the Sixth Circuit found a professor had asserted a plausible First Amendment claim where the university disciplined him for refusing to use preferred pronouns in reference to a transgender student. And the majority’s treatment of what it characterized as “divisive speech” is unconvincing given Tinker’s treatment of a statement about the Vietnam War and reference to the “hazardous freedom . . . that is the basis of our national strength.” Even beyond that, Batchelder called out the majority: “The speech that the District deems divisive is really a viewpoint with which it disagrees.” In any event, “[t]he First Amendment has no carve-out for divisive speech. Especially not in schools.”

The court, Batchelder concluded, should have been able to “prevent the District from applying the policies to compel students to affirm beliefs they do not hold while leaving intact the policy’s prohibitions on bona fide harassment.” Fortunately, in its consideration of this case en banc, the Sixth Circuit may yet do so. Since they sit on a lower court, the judges will be subject to Supreme Court precedent, so expect to see multiple invocations of Barnette and Tinker. Many originalist court watchers have misgivings about Tinker, which Justice Clarence Thomas has called for overruling in the past. But that does not change the fundamental dynamics of PDE’s case. It falls squarely under the compelled speech rule of Barnette and that precedent’s timeless observation: “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.”