COLUMBUS, Ohio — (AP) — A federal appeals court in Cincinnati heard arguments Wednesday in a legal dispute that pits a suburban Ohio school district’s policy on gender 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, with a number of conservative policy groups, the American Civil Liberties Union and Christian, Jewish, Muslim and Hindu rights organizations lining up against the policy and leading LGBTQ+ rights and schools groups lining up generally in defense of it. Ohio's solicitor general, Elliot Gaiser, participated 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 U.S. Circuit Court of Appeals in Cincinnati affirmed that decision in July.
The full court reconsidered that decision during a rare en banc hearing lasting more than an hour on Wednesday. Here’s what you need to know:
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.
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 violate 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. But it also notes that the district documented no disruptive activity before imposing the policy some 10 years ago.
“Common sense says that Olentangy's policies aren't helping students by compelling their peers to parrot words they don't really believe,” PDE's attorney Cam Norris told judges Wednesday. “They are harming them by teaching them that different world views should be silenced and banned, not understood and rebutted.”
Gaiser contended that the policies have taken a side in a political debate. “Schools cannot silence dissenters by labeling those dissenters bullies,” he said.
Olentangy Local Schools, a sprawling 24,000-student district north of Columbus, maintains the policies proactively 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.”
In its supporting brief, the Ohio School Boards Association said districts across Ohio have identical or very similar anti-bullying and -discrimination policies in place as they “walk a proverbial tightrope” to both protect students’ First Amendment rights and maintain a conducive learning environment.
During Wednesday's arguments, attorney Jaime Santos told judges that Olentangy's policies don't impede students' open discussions of their views on issues of gender identity.
“The only thing they can’t do is repeatedly make comments about these issues that are directed to a particular student, including by repeatedly and intentionally misgendering a classmate,” she said. “Just because a student should be able to say that the body positivity movement is harmful and it encourages obesity, doesn’t mean a school has to allow that student to call a classmate fat.”
Alternatives to avoid that are provided to students, including using a peer's first name, using gender-neutral pronouns or simply not referring to them at all. That played in the district's favor when the three-judge panel upheld its side last summer.
The court did not say when it would rule.
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An earlier version of this story has been corrected to reflect that Parents Defending Education is a nonsectarian membership group, not Christian.