School’s Transgender Anti-Bullying Policy Violates First Amendment

The Eighth Circuit Court of Appeals recently enjoined a school’s policy requiring “respect” of students’ gender identities. The court found that the term “respect” is not defined in the policy; therefore it is vague, prone to arbitrary enforcement and invalid under the First Amendment. The court recognized the good intentions of the policy, but held that it prohibits valid discussion as well as unacceptable bullying.

As the Court summarized, the school’s policy “provides that a student has ‘the right to be addressed by a name and pronoun that corresponds to their gender identity.’ , , , An intentional and/or persistent refusal by staff or students to respect a student’s gender identity is a violation of school board policies,’ including ‘anti-bullying’ and ‘anti-harassment’ policies.”

The failure to define “respect” in the policy, according to the Court, means that the policy “could cover any speech about gender identity that a school administrator deems ‘disrespectful’ of another student’s gender identity. A student thus cannot know whether he is violating the policy when he expresses discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable during a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams.”

Finally, the Court noted that the lack of clarity in the policy allowed school administrators to arbitrarily enforce the policy. “Without meaningful guidance, District officials are left to determine on an ‘ad hoc and subjective basis’ what speech is ‘disrespectful’ and subject to discipline, and what speech is acceptable.”

One judge filed a concurring opinion noting that federal law, specifically Title IX, and Iowa state law require schools to prohibit sexual harassment and bullying on the basis of gender identity. The judge concurred in the result because the policy unconstitutionally prohibited speech that was “merely offensive to some listener.”

Schools have an obligation to protect their students from bullying.  Definitions of bullying and harassment, however, cannot prohibit content just because other students might find it offensive. Requirements of “respect” must leave room for respectful discussion of controversial and even difficult topics.