of Order for permission for retrial was just filed today, so the court is expected to revisit the case in the coming months. The following is an excerpt from the panel’s majority opinion (which included Justices Jane Stranch and Stephanie Davis), which is now invalid. The opinion addresses a school policy that “prohibits students from repeatedly and intentionally using nonpreferred pronouns to refer to classmates.”
Tinker v. Des Moines County Board. Sch. distance (1969)…does not require school authorities to wait for disruption to occur before regulating speech, nor does it “require certainty that disruption will occur.” This limited preliminary injunction record also contains evidence of the significant confusion that the intentional repeated use of non-preferred pronouns to refer to transgender students can cause. Parent members of PDE themselves “understand”[]“The use of a preferred pronoun may be seen as “insulting,” “humiliating,” “inhuman,” “derogatory,” or “undesirable” by those who wish to use a different pronoun. ”
PDE also attached an article to the preliminary injunction motion that includes a therapist’s explanation that students who are “misgendered all day long” are “traumatized,” “humiliated,” and often “cry after school.” This evidence is consistent with studies cited by the district court that compiled literature on “measurable psychological and physiological harm” that can be caused by the use of nonpreferred pronouns. And this research shows that transgender students experience the use of non-preferred pronouns as dehumanizing, and that, as a result, repeated use of such pronouns has a profound negative impact on children and youth. This supports the conclusion that there is a possibility of giving…
PDE argues that…by prohibiting the use of non-preferred pronouns, the district’s policy unconstitutionally discriminates on the basis of viewpoint. Depending on the place of speech, the government may enact restrictions on speech based on content, but there is also the issue of “viewpoint discrimination,” that is, when restrictions are based on a particular motivating ideology or the speaker’s opinion or point of view. “Restriction of speech” is prohibited. —Usually “presumed not acceptable.” Rosenberger vs. Rector (1995).
The Supreme Court has suggested that “it may be appropriate to condone discrimination that targets particular points of view.” [the] Given the “unique circumstances” of public schools, our case law requires that restrictions on student speech be “consistent with both conditions.” tinker standard and RosenbergerAs a result, schools may engage in content discrimination, which is “permissible if it upholds the objectives” of the forum (e.g., prohibition on interference), but “perspective discrimination that is presumed to be impermissible” is Prohibited. “if otherwise directed against speech within the limits of the forum” (e.g., prohibiting selected forms of disruption based on expressed ideology).
Applying this standard to the public school context, we find that while a blanket ban on the use of “offensive racial epithets” by “supporters of any opinion” constitutes merely content-based regulation, The ban on the use of racial slurs is for ‘supporters of all opinions.’ Even a group of speakers who are not “opponents of that speaker” constitutes viewpoint discrimination. ” Similarly, the dress code prohibits all clothing that displays “causal symbols.”[] While “disruption of the educational process” is an acceptable content-based regulation, “banning certain racially sensitive symbols but not others” is impermissible viewpoint discrimination. In other words, schools can specifically enact and enforce blanket bans on subversive symbols and speech. However, speech cannot be regulated as a means of silencing particular viewpoints.
The challenged policy here prohibits harassment, illegal conduct, and other disruptive speech across a variety of categories. That structure, and the district’s position that students can communicate their belief that sex is immutable in ways other than the use of non-preferred pronouns, indicates that the district is not seeking to ban any viewpoint. . Additionally, there is no evidence in the preliminary injunction record that the district enforces the policy differently with respect to gender identity compared to other protected characteristics.
Justice Alice Batchelder’s dissenting opinion reads:
As I understand it, the plaintiffs’ position is that, based on science (biology, physiology, genetics) and religious beliefs, biological sex is immutable and a person is either male or female; There is no such thing as “gender change.” “;It’s fictional, it’s believed, and public schools can’t force kids to pretend it’s real. Agree with it or disagree with it, it’s something they believe in. is their position.
From that perspective, the speech at issue here is not simply a discussion of gender identity or misgendering, but rather the existence of gender reassignment. The Olentangy Regional School District’s position is that, contrary to the views of parents who advocate for education, there is such a thing as gender transition. It is real and deserves to be recognized and, in fact, protected in public schools. Why else would a school district require preferred pronouns, forbid biological pronouns, or make the bizarre compromise of not using pronouns at all?So government authorities (the school district) would insist that all prisoners (student) has taken the clear position (perspective) that the existence of gender reassignment must be affirmed (in words or silence), regardless of one’s own views. This is viewpoint-based speech regulation.
And from this point of view, it is also forced speech. Students’ only options begin with the school district’s perspective that gender transition is real. From there, students must adjust their own expressions based on that perspective. The constitution prohibits this. See West Virginia General Assembly. of edak. v. Barnett (1943) (“If there is a star in our constitutional constellation, it is the one that determines what is legitimate in matters of opinion for any official, high or low. This means that they cannot confess their faith to the people in words or make them put their faith into action. Tinker v. Des Moines County Board. Sch. distance (1969) (Schoolchildren do not “relinquish their constitutional rights to freedom of speech and expression at the school gates”).
The majority similarly proceeds from this premise and concludes that there is no forced speech because students are not forced to use their preferred pronoun. They can follow this by avoiding the use of normal, commonplace biological pronouns and instead calling these particular classmates by their first names and not using pronouns at all. Obviously, this awkward adjustment (of not using pronouns) requires the speaker to recognize and accept that gender transition is real and that it applies to these particular students.
The majority also agrees that there is no perspective issue here, as the school district has not taken a position on whether gender transition is good or bad, and students remain free to discuss and debate it. concludes. It’s like saying the school doesn’t have any perspective on ghosts when they have students debate whether ghosts are good or bad. However, the plaintiffs’ argument is that ghosts do not exist. And schools don’t have to force children to believe in ghosts. Again, whether you agree or disagree, PDE’s position is that gender transitions are ghostly and fictional…. [And t]He led a Sixth Circuit case on viewpoint-based speech regulation, affirming that a viewpoint-based ban cannot survive regardless of whether it meets tinkerSubstantial destructive testing.
