Federal Court: Treating Misgendering as Bullying Does Not Violate Students’ Free Speech

The U.S. Court of Appeals for the Sixth Circuit recently considered a school's anti-bullying policy that prohibits “discriminatory harassment” based on gender identity.  The court determined that the plaintiffs are not entitled to a preliminary injunction against the policy while the lawsuit proceeds.  The policy defines harassment as “any threatening, insulting, or dehumanizing gesture, use of technology, or written, verbal or physical conduct directed against a student” that substantially interfered with the student's educational performance.   The Code of Conduct prohibits “comments, jokes, and slurs that are derogatory towards an individual or group” based on a list of characteristics that includes transgender identity.

A group of parents sued, arguing that the policy prohibits their children, who believe that sex is immutable, from expressing that belief through the use of “biologically accurate” pronouns.  The plaintiffs also argued that the school policies prohibited a discussion of their beliefs.

The appellate court agreed with the district court that the plaintiffs were not likely to win their case on the merits and thus were not entitled to a preliminary injunction.  The court agreed with the school that allowing misgendering might be insulting to transgender students and could cause substantial disruption in the school.  The court noted that at later stages of the proceedings, the school would be required to prove substantial disruption.  At the injunction stage, however, the plaintiffs had the burden of proving no disruption and had not done so.

The court disagreed that the policy compelled speech that the plaintiff students disagreed with, noting that the school would allow them to use no pronouns at all and refer to fellow students by proper name.  Considering the breadth of the Code of Conduct, the court noted that the evidence might require a different ruling at a later stage of the suit when the burden of proof shifts to the school system.