Preferred pronouns required for alleged rapist, not for students? Legal cases diverge nationwide

As public employees notch legal wins in their quest to avoid punishment for refusing to use preferred pronouns at odds with another's sex, such freedom against compelled speech may not apply in the courtroom itself.

Ohio teacher Vivian Geraghty received a $450,000 settlement to drop her two-year-old First Amendment lawsuit against the Jackson Local School District for forcing her to resign shortly after Geraghty expressed "reservations" about participation in the "social transition" of gender-confused students, her Alliance Defending Freedom lawyers said Wednesday.

The religious liberty law firm secured an even bigger settlement for Virginia teacher Peter Vlaming in September and religious accommodations without payment for another set of Old Dominion educators, Deborah Figliola, Kristine Marsh and Laura Nelson, on Dec. 10.

Public school students in Kentucky, Michigan, Ohio and Tennessee could be the first in the nation to have First Amendment rights recognized against compelled use of their peers' preferred pronouns in a case pending before the full 6th U.S. Circuit Court of Appeals.

It's not clear whether lawyers will be granted the same leeway when arguing cases for their clients or the state, even when gender identity itself is key to the litigation.

A California judge ordered a prosecutor to refer to Tremaine Carroll with female pronouns in the male inmate's upcoming felony trial for rape and "dissuading a witness" while housed at the Central California Women's Facility, according to a gender-critical feminist group suing to block the Golden State's gender self-identification law for prison placement (SB 132).

"The motion may also force witnesses and victims of the man [Carroll] to refer to him as 'she' and 'her,'" the Women's Liberation Front warned supporters Dec. 17.

WoLF told Just the News it knew of no other courts that had required an alleged male rapist be identified as female, but noted Los Angeles District Attorney George Gascon's onetime deputy, Shea Sanna, sued him for alleged retaliation on the pretext of Sanna "misgendering" a child predator, whose case Sanna alleged Gascon had botched.

The Cincinnati-based 6th Circuit voted Nov. 1 to vacate a divided three-judge panel's ruling for Ohio's Olentangy Local School District, which banned students from "repeatedly and intentionally using non-preferred pronouns to refer to their classmates." It already protected professor Nicholas Meriwether's right of refusal, followed by a large ADF settlement.

Friend-of-the-court briefs poured into the 6th Circuit over the past week by Christian, Hindu, Jewish, Muslim, conservative and free speech groups, as well as 23 state attorneys general co-led by South Carolina's Alan Wilson and Ohio's Dave Yost, siding with the dissenting students represented by Parents Defending Education.

ADF's brief reminds the appeals judges that district courts have already sided with its clients Meriwether and Geraghty. "The First Amendment protects each individual’s right to express his own message, not a message the government mandates," it says.

The AGs' brief emphasized the "rare position" they are arguing – especially Ohio, which has no authority over student-conduct policies – to "reaffirm limits on governmental power" in the face of Olentangy's request to "bless a pernicious, compelled-speech regime" and circumvent "debate over the proper interpersonal and cultural response to transgenderism."

The 6th Circuit's Meriwether precedent recognized "the pervasive nature of personal pronouns makes it virtually impossible to avoid them in ordinary human interaction," the AGs said, mocking the panel majority's "faux 'compromise'" that students can simply refer to each other by name – both suppression of "their chosen message" and coercion of speech.

"By using a transgender student’s preferred pronouns, a fellow student is not expressing, 'I acknowledge that you think your gender is X'" but rather "'I accept that your gender is X,'" showing that "ideological conformity is the policies’ true and impermissible purpose," AGs said.

The trial ruling upheld by the majority doesn't even believe its own claim that students' pronoun use is more "mechanical" than "substantive," because the ruling said failure to use preferred pronouns creates a "hostile environment" through "verbal bullying," the brief states.

The Foundation for Individual Rights and Expression said the panel majority got it backwards by finding coerced pronoun usage was less onerous than the compelled Pledge of Allegiance recitation in the World War II case Barnette.

The district "imposes a mandate that hangs over students throughout the day, both in and out of class, and threatens punishment if they happen to use pronouns the state has not approved," FIRE's brief says. "The students’ option is to use the language the state demands or remain silent," and not the good version in the Bill of Rights.

The panel majority's admission that "intentional use of preferred or nonpreferred pronouns" is protected speech, even for younger children, cannot be reconciled with Barnette and its ban on any official "prescrib[ing] what speech shall be orthodox," according to FIRE.

The Michigan Supreme Court ordered state courts to use the preferred pronouns and salutations of parties and attorneys, including "they" and "Mx.," effective Jan. 1, 2024, making the Great Lakes State the first in the nation to put gender identity over biology. 

The Michigan Advance reported the issue came up after an appeals judge refused to address the male defendant in a criminal sexual assault case as "they/them," warning the "potential absurdities we will face are unbounded" if the courts accept this "insanity."

Kansas AG Kris Kobach asked the Denver-based 10th Circuit a year ago to rein in several lower judges who either "explicitly require" or "pressure" litigants to use everyone's preferred pronouns, calling the practice confusing, prejudicial and an attack on the rights of counsel.

The lawyer for California inmate Carroll – who also goes by "Tremayne" and was transferred back to men's prison following the charges – urged Judge Katherine Rigby at a July preliminary hearing to force Madera County Supervising Deputy District Attorney Eric DuTemple to use Carroll's preferred pronouns, according to WoLF, whose leaders attended the hearing.

DuTemple objected in a brief requested by Rigby, who denied the motion to use male pronouns for Carroll on Dec. 16, WoLF said. It told Just the News it requested the hearing transcript to document the order, which is not formalized in the online court system for that day's hearing, which concerned Carroll's so-called 995 motion.

Carroll's next "parole suitability hearing" is tentatively scheduled for January.

WoLF expects the ACLU, which successfully represented Carroll in a motion to intervene in WoLF's challenge to SB 132 on behalf of female inmates, to demand the same compelled pronoun use, since the ACLU has convinced courts to do so in "at least two other cases that relate to sex discrimination," WoLF said.

Such mandates make it "more difficult and perilous" for lawyers to advocate "zealously" for clients and "more traumatic and fraught" for witnesses and victims, the gender-critical group said, and also "falsely increase statistics on sexual victimization against those who claim to be transgender while incarcerated."

WoLF said that's why it has fought state implementations of the American Bar Association's Model Rule 8.4(g), a sort of speech code for lawyers in settings "related to the practice of law" and the subject of a failed Supreme Court petition this year.