Reversing Clinton Judge Appeals Court Rules Students Can’t be Punished for using Transgender Classmates’ Biological Pronouns

Is the learning environment disrupted when students in kindergarten through high school refer to all classmates—including those who identify as transgender—by their biological pronoun? A public school district in Ohio claims it is and a few years ago enacted an “anti-harassment” policy that punishes students who refuse to use the preferred pronouns of transgender classmates. This is widely known among leftists as “misgendering” and the Olentangy Local School District Board of Education in the northern suburbs of Columbus created a measure to discipline students who use language that inaccurately represents another person’s gender identity as part of a series of speech codes in support of the district’s preferred viewpoints. This includes prohibiting “discriminatory language” considered derogatory towards an individual or group based, on among other things, “transgender identity.” The public school district policies prohibit “purposely referring to another student by using gendered language they know is contrary to the other student’s identity.”

With an enrollment of 24,531 Olentangy is the fourth largest school district in Ohio, with 16 elementary schools, five middle schools, and four high schools. Many of the students’ parents were outraged about the policies and sued the district, claiming they violate the First Amendment’s guarantees to free speech and unconstitutionally compel speech because they force students to alter their speech or use other students’ “preferred pronouns”—despite the students’ firmly held beliefs that sex is immutable. The Policies are also unconstitutional because they punish students based on the viewpoint and content of the speech, according to the parent’s lawsuit, and they are overboard because they restrict a substantial amount of constitutionally protected speech and transgress the fundamental rights of parents to raise their children. A Clinton-appointed federal judge, Algenon L. Marbley, in the southern District of Ohio ruled against them, writing in a 2023 opinion that the intentional misgendering of students constitutes “verbal bullying” and the Constitution likely does not guarantee a “right to bully transgender students.”

The parents appealed and a three-judge panel of the United States Court of Appeals for the Sixth Circuit heard the case and upheld Judge Marbley’s decision in the summer of 2024, ruling that free speech rules for schoolchildren must take into account consideration of the sensibilities of fellow students and schools are entitled to regulate speech that “would undermine the school’s basic educational mission.” The three-judge panel agreed with the school district that speech criticizing the identity of specific classmates, including the use of non-preferred pronouns, is more likely to cause disruption than speech about social issues in the abstract. “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 appellate panel wrote in its decision. The 55-page document also says, “studies show that intentional, repeated use of non-preferred pronouns is more disruptive than discussions about transgender issues.”

The parents appealed again asking the full Sixth Circuit appellate court, which has 16 judges, to hear the case and the court agreed and held oral arguments last spring. This month the court came back with a lengthy ruling in favor of the parents. Students who refer to all classmates by their biological pronouns—whether they are transgender or not—do not disrupt the learning environment and cannot be forced to use preferred pronouns, the court ruled. In the decision the court’s majority determined that Olentangy public schools failed to 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.” The appellate court also issued a preliminary injunction banning the school district from punishing students for the commonplace use of biological pronouns involving transgender classmates though it still allows officials to enforce other anti-harassment policies to protect all students, including those who identify as transgender. “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 ruling notes. “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.”

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