The 6th US Circuit Court of Appeals in Cincinnati will hear arguments Wednesday in a legal dispute that pits a suburban Ohio school district’s policy requiring use of students’ preferred pronouns against the free speech rights of classmates who believe there are only two genders.
The lawsuit brought by Parents Defending Education, a national membership organization, against the Olentangy Local School District in 2023 has captured broad national attention from groups ranging from the American Civil Liberties Union to the conservative Manhattan Institute. Ohio’s solicitor general has asked to participate in oral arguments on behalf of 22 U.S. states that have interests in the case.
A lower court rejected the group’s arguments that the policies violated students’ First Amendment and Fourteenth Amendment rights, and a three-judge panel of the 6th Circuit affirmed that decision in July.
The full court will reconsider that decision in a rare en banc hearing Wednesday. Here’s what you need to know:
What are the policies involved? The lawsuit takes issue with overlapping district policies that prohibit the use of gender-related language that other students might deem insulting, dehumanizing, unwanted or offensive and call for the use of peers’ “preferred pronouns.”
The district’s electronic devices policy – which applies both on and off school time – prohibits transmitting “disruptive” material or material that could be seen as harassing or disparaging other students based on their gender identity or sexual orientation, among other categories.
A separate antidiscrimination policy prohibits students from engaging in “discriminatory language” during times when they’re under the school’s authority. That is defined as “verbal or written comments, jokes, and slurs that are derogatory towards an individual or group based on one or more of the following characteristics: race, color, national origin, sex (including sexual orientation and transgender identity), disability, age, religion, ancestry, or genetic information.”
The district’s code of conduct echoes many of the same themes a third time.
What is the position of the parents’ group? Parents Defending Education, founded in 2021 amid the culture wars over schools’ teachings on race, diversity and sexuality, argues that the policies compel students and parents who belong to their group to “affirm an idea that gender is fluid” in contradiction of their religious beliefs.
“These students have views that the District disfavors,” the group wrote in a court filing. “Specifically, they believe that people are either male or female, that biological sex is immutable, and that sex does not change based on someone’s internal feelings. Accordingly, they ‘d(o) not want to be forced to ‘affirm’ that a biologically female classmate is actually a male – or vice versa – or that a classmate is ‘nonbinary’ and neither male nor female.”
The group argues that the policies unconstitutionally compel “viewpoint-based” speech by forcing students who believe in only two genders to use pronouns that suggest otherwise. They say that violates the First Amendment’s guarantees to free speech and similar protections contained in the 14th Amendment, particularly since students are subject to punishment for violating the policies.
Parents Defending Education further challenges the electronic devices policy for applying outside school hours and off school property. The ACLU has sided with the parents’ group on this point, arguing the district’s policies are overbroad.
What is the position of the school district? Olentangy Local School District outside Columbus, one of the state’s largest districts, maintains the policies protect students against abuse and harassment and asserts that Parents Defending Education represents “Christian, cisgender” students “seeking dispensation under the free speech clause of the First Amendment to harass other students based on their gender identity.”
“They are not illegal immigrants subject to deportation. They are not gay soldiers under Don’t Ask Don’t Tell. They’re not African Americans in the Jim Crow south. They’ve not been systematically oppressed,” the district’s lawyers told the lower court. “They’re members of the majority who want to – under the guise of the First Amendment – openly voice their opposition to an historically maligned minority group, transgendered people.”
Olentangy argues that Parents Defending Education has failed to provide evidence of injury – as the lawsuit was filed before disciplinary action had been brought against any student. The district also says that its policies leave open other options for students who don’t wish to use someone’s preferred pronouns. That includes calling the person by their first name, using a gender-neutral pronoun or simply not referring to them at all.
The availability of such options, an argument against the policies unconstitutionally compelling students to say certain things, played a role in the three-judge panel’s 2-1 ruling in favor of the district last summer.
