Through its Supreme Court loss a year ago, the most religiously diverse county in America confirmed that school districts must notify parents of gender and sexuality materials that interfere with the religious upbringing of their children, and let them opt out.

First Amendment scholars, conservative legal groups, parental rights activists, Republican-led states and educators in several lawsuits against compelled adherence to gender ideology are pressing the high court to again make an example of Montgomery County Public Schools, flooding SCOTUS with friend-of-the-court briefs through Friday's deadline.

The 4th U.S. Circuit Court of Appeals upheld the suburban D.C. district's practice of forcing teachers to use students' preferred names and pronouns and gagging teachers from telling parents about their children's gender confusion without the students' permission, firing substitute Kimberly Polk when she resisted.

The split three-judge panel said the MCPS practice was neutral and generally applicable under the SCOTUS precedent Smith, widely used to gut religious freedom, and didn't infringe on Polk's First Amendment rights under the Garcetti precedent that deprives public employees of free speech in their "official duties."

By contrast, SCOTUS reinstated a permanent injunction against California's so-called gender secrecy policies this spring, rebuking the oft-overturned 9th Circuit and other lower courts for ignoring a century of parental rights precedents. The lead plaintiffs in that case, teachers Elizabeth Mirabelli and Lori Ann West, filed a joint brief in Polk's case.

The 4th Circuit is now threatening the 9th Circuit's reputation as the most overturned. The justices overruled every 4th Circuit decision they reviewed in the 2024-2025 term, including the MCPS case over LGBTQ "storybooks," while upholding a few by the 5th Circuit, the most reviewed that term.

Polk's review petition asks SCOTUS to resolve whether Smith applies to compelling teachers "over their religious objections" to use wrong-sex pronouns for students and hide their gender confusion from parents – watering down their free-exercise rights — and if public schools violate the free speech clause through such a policy.

With more than 1,200 school districts allegedly maintaining policies that allow or compel teachers to hide students' gender confusion from parents, this is an ideal case for the justices, 11 GOP attorneys general led by West Virginia's John McCuskey wrote.

"The Guidelines raise every First Amendment red flag," they wrote. "They compel speech, silence speech, pick a favored viewpoint in the gender identity debate, and pressure Ms. Polk to abandon her religious views," which MCPS could have accommodated by giving Polk a classroom "with no transitioning students," given her focus on early elementary school.

Progressive teachers in conservative jurisdictions are also at risk from an interpretation of Garcetti that deems their official duties to include pronoun usage, the AGs warned, citing the 11th Circuit's approval of Florida's law banning teachers from using preferred pronouns for themselves in class.

The number of states on the brief is unusually low for such a case seeking SCOTUS review – fewer than half of those with Republican trifectas. It includes Texas but not Florida, which didn't answer queries Monday about its absence.

No-exceptions policy is enough to lose

Polk's case doesn't require the high court to "articulate any categorical rule or to announce any general conclusion" on pronouns, 22 First Amendment scholars told the justices, notably Princeton's Robert George, former federal appellate judge Michael McConnell and Baylor's Francis Beckwith, an adviser to President Trump's religious liberty commission.

"What is imperative is for this Court to reject the lower courts’ position that the constitutional principles of 'no imposed orthodoxy' and 'no compelled affirmations' are somehow suspended in the context of public school pedagogy," they said.

MCPS's inflexibility is enough to rule against it again, according to the scholars, given that SCOTUS highlighted its "abject refusal" to consider any exemption from LGBTQ storybooks. (A Silicon Valley school district got sued in June for its no-exceptions LGBTQ storybook policy after months of meetings on how to apply Mahmoud, the precedent from MCPS.)

The district ruled out "abundant" options Polk discussed with compliance officer Khalid Walker, including assigning her to classrooms with no transitioners, case-by-case negotiation or avoiding pronouns entirely, the option suggested by French teacher Peter Vlaming, who received a hefty settlement after the Virginia Supreme Court reinstated his lawsuit.

Vlaming joined "mostly successful" plaintiffs from similar litigation – philosophy professor Nicholas Meriwether in the 6th Circuit, music teacher John Kluge and counselor Kathy McCord in the 7th, and history teacher Monica Gill, gym teacher Tanner Cross and English teacher Kim Wright in the 4th – in a brief led by advocacy group Christian Educators.

They risked their careers, enduring "scrutiny of their beliefs by their employers" and "constant negative attention from the public," and spent years in court and appeals to achieve the previously "unremarkable position" that educators can't be compelled to affirm that male  students are females," the brief says.

"This isn’t Garcetti; this is forced orthodoxy on an important political question [...] a tool for coercive social manipulation, silencing otherwise protected freedoms" and creating an "end-run" around the foundational First Amendment precedent Tinker, which prohibits public schools from becoming "enclaves of totalitarianism," the brief says.

Christian Educators' year-ago member survey found more than a quarter fear losing their jobs "because of disagreements about LGBTQ policies," especially pertaining to gender identity, and 5% have experienced "professional consequences" from warnings to firing. Nearly half have been asked to use students' preferred names and pronouns, doubling in the past six years.

Precedent against compelled union dues requires 'more rigorous' scrutiny

America First Legal Foundation, co-founded by White House Deputy Chief of Staff Stephen Miller, accused the 4th Circuit of ignoring the 8-year-old Janus precedent against public employee unions compelling "agency fees" from nonmembers. It's representing fired Colorado educator Patrick Hogarty at the 10th Circuit in a similar compelled-speech case.

Janus instructed lower courts to apply "more rigorous" scrutiny to public entities that compel speech from employees than courts ordinarily would under an earlier precedent, Pickering, which balances employees' private speech on matters of public concern against their employers' interest in avoiding workplace disruption.

By asserting that "speech about personal identification in an internal training breakout session was somehow the employer’s own," as did the trial court that ruled against Hogarty, and by "expanding job duties to ideological demands of the employer," as the 4th Circuit did to Polk, these courts "practically eliminate[d] public employee speech rights," the brief says.

The brief by Mirabelli and West, who helped secure the permanent injunction against California's gender secrecy policies that specifically applies to parents, argues that MCPS can't even meet the ordinary Pickering balancing test.

As the Virginia Supreme Court said in reinstating Vlaming's lawsuit, gender identity is a matter of public concern in this context because school districts use it to foster "public adherence to an ideological point of view" and compel plaintiffs like Vlaming and Polk to speak against their conscience in furtherance of that view, the brief says.

Applying Janus, the educators said teachers are "paid to teach subjects, not to be spokespersons 'mouth[ing] a message on [the government’s] behalf.'" They said the government can only win the balancing test by showing its "legitimate administrative interests" are disrupted, not that it has an interest in suppressing free expression.