On November 6, the federal appeals court in Cincinnati ruled that an Ohio school district cannot punish students who refer to their transgender peers by biological pronouns. It said such biological pronouns were speech protected by the First Amendment.
The Sixth Circuit Court of Appeals decided by a 10-7 vote that the school district “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.’”
The decision was issued in in Defending Education v. Olentangy Local School District Board of Education.
What the court required from the school district — that it show the speech would cause disruption or violate someone’s rights, before it could punish that speech — comes from the historic 1969 Supreme Court ruling in Tinker v. Des Moines School District, which ruled that students could wear black arm bands at school to protest the Vietnam War, because such arm bands did not cause any substantial disruption of the school.
The Sixth Circuit court’s 10-to-7 en banc decision overturns a federal trial judge’s ruling in favor of the school district, as well as an earlier decision by a three-judge Sixth Circuit panel, which had ruled in favor of the school district by a 2-to-1 vote.
“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 10-judge majority wrote, in an opinion authored by Judge Eric Murphy, who was appointed by Donald Trump. “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.” “Unlike…a political diatribe about transgender rights in math class, the mere use of biological pronouns does not entail ‘aggressive, disruptive action.’”
The majority said its ruling does not prevent the schools from protecting trans students from harassment, anymore than it prevents the schools from enforcing “those policies against the abuse of all other students.”
The school district had claimed that students who purposely “us[ed] gendered language they know is contrary to the other student’s identity” were engaged in harassment and discrimination, in violation of its policy and Ohio sexual harassment law. It likened the use of non-trans pronouns for trans students to “Hispanic students being told by classmates to ‘go back to Mexico!’”
Some transgender people constantly change their pronouns, making it difficult to use their preferred pronoun. There are 72 different genders that transgender people can choose from, according to Medicine.Net. There are many made-up transgender pronouns such as “ze” and “zem” that are hard to keep track of.
Forcing people to use particular pronouns can violate the First Amendment, as law professor Eugene Volokh explained in the Washington Post.
Non-trangender people have no right to force co-workers to use plural words like “them” or made-up words like “xe” or “xem” to refer to them, or to violate basic grammatical rules, so trangender people should not, either. Many courts have ruled that federal civil rights laws do not create a right to affirmative action or special treatment, in cases such as Coalition for Economic Equity v. Wilson (1997).
