Schools cannot ban 'merely offensive' speech on gender identity, appeals court rules

Fifty-six years after it exempted antiwar teenagers from First Amendment protections while on campus, a federal appeals court in America's heartland affirmed students' speech rights in public schools on an equally contentious subject today.

The St. Louis-based 8th U.S. Circuit Court of Appeals issued a preliminary injunction Monday against an Iowa school district policy that threatens suspension and expulsion for "intentional and/or persistent refusal … to respect" a peer's gender identity, finding it's likely too vague to survive legal scrutiny.

"A school district cannot avoid the strictures of the First Amendment simply by defining certain speech as 'bullying' or 'harassment'" as did the Linn-Mar Community School District, the three-judge panel ruled in a case that drew friend-of-the-court briefs by dozens of conservative and religious groups and 18 Republican-led states in favor of the plaintiffs.

A similar group of court watchers is asking the Boston-based 1st Circuit – which oversees Maine, Massachusetts, New Hampshire and Rhode Island – to also overturn a lower court's ruling that students do not have the right to assert the existence of the sexual binary while on school grounds.

The flurry of court activity related to gender identity in school continued Tuesday in Wisconsin.

A state court struck down the Kettle Moraine School District's policy of hiding gender transitions as an intrusion on parents' rights to control "medical and healthcare" decisions about their children.

The Supreme Court enshrined broad speech rights for public school students in 1969 by overturning the 8th Circuit's ruling two years earlier against the Tinker siblings' right to wear black armbands to Des Moines schools to protest the Vietnam War.

Tinker showed up in the panel's ruling in favor of Parents Defending Education, which filed the lawsuit against the Linn-Mar school district. And several anonymous parents who have children in Linn-Mar or removed them to avoid its gender identity policies. Two judges are President George W. Bush's appointees, and the third President Obama's.

Speech cannot be regulated as an "invasion of the rights of others" because it is "merely offensive to some listener," the 8th Circuit said, quoting Tinker and a 3rd Circuit ruling written by future Justice Samuel Alito that struck down a policy prohibiting "unwelcome" verbal or written conduct that "offends, denigrates or belittles" based on "personal characteristics."

One of the parents said their child fears punishment for saying "biological sex is immutable," disagreeing with a peer's assertion about their sex, opposing males in women's sports and expressing "discomfort" with sharing a bathroom with teachers or students of the opposite sex.

While Linn-Mar claims the gender identity policy requires students only to use each other's "preferred name or pronouns," it does not define "respect," says students "shall be disciplined" for violations and was enacted just last year, according to the ruling. 

This makes arbitrary enforcement likely, particularly because gender identity is defined as a "deeply-held sense or psychological knowledge" of one's gender, the panel said. 

A concurrence by Judge Jane Kelly, the Obama appointee, emphasized the district "may have used language that is insufficiently tailored" to ensuring students of all gender identities "can learn effectively," but "the goal itself" is both "well within the scope of the District’s educational mission" and "mandated by law."

The panel dismissed the plaintiffs' claims against Linn-Mar's policy on not disclosing gender transitions to parents because Iowa enacted a law this summer that bans schools from giving parents "false or misleading information" about their children's gender identity or "intention to transition."

Meanwhile, a student 1,200 miles away is fighting for his right to wear clothing that reads "There Are Only Two Genders" and "There Are Censored Genders," both of which got 12-year-old Liam Morrison sent to the principal's office on consecutive days this spring.

At issue is Middleborough Public Schools' dress code prohibiting clothing that even "impl[ies] … hate speech or imagery that target[s]" gender identity, punishable by suspension. By contrast, the district appears to heavily promote transgender messages.

Judge Indira Talwani, also an Obama appointee, denied Morrison's motion for preliminary injunction in June, taking opposite lessons from Tinker.

District officials were "well within their discretion to conclude" the message constituted an "invasion of the rights" of "a group of potentially vulnerable students" whose gender identity is not male or female, she wrote.

Sixteen states led by South Carolina filed a joint brief with the 1st Circuit that argued Talwani selectively edited Tinker and ignored "decades" of 1st Circuit precedent, core Supreme Court precedents that protect students against viewpoint discrimination and Morrison's viewpoint discrimination claims "entirely."

Binding precedents require the alleged targeting of a "specific student" and a "causal link" between speech and bullying, not just a "general statement of discontent," the states wrote, quoting 1st Circuit rulings on contested student speech in 2020 and 2021. 

The Foundation for Individual Rights and Expression's brief made similar arguments that Tinker exceptions "cannot be expanded to cover a student’s un-targeted political statement, no matter how unpopular that statement may be."

Talwani also "ignored relevant case law" outside the 1st Circuit such as Saxe, the Alito-written 3rd Circuit opinion, which interpreted the "invasion" language of Tinker to only apply to "independently tortious speech" such as libel and intentional infliction of emotional distress, the states said.

No different than antiwar expression, questions of gender identity are a "hotly contested matter of public concern" subject to the highest First Amendment protections, the states said, quoting the 6th Circuit's ruling against a public university for forcing a professor to use a student's preferred pronouns. (Nicholas Meriwether later got a $400,000 settlement.)

The Parents Defending Education's brief said Talwani's ruling threatens the rights of its members' children to express "viewpoints on important philosophical, religious, and political topics of our day" in 1st Circuit states.

"Middleborough all but admits that it engaged in viewpoint discrimination" by not just permitting but encouraging "speech supporting the idea that there are more than two genders" while prohibiting Morrison's, the association said.

It asked the circuit to crack down on the "growing trend of schools picking one side" of the debate on sex and gender identity, prohibiting "expression that would be constitutionally protected outside school" and "punishing students for unpopular speech" by redefining it as bullying.

"The belief that sex is binary … is not only held by the majority of adults, but also, until quite recently, was taken for granted as scientific fact," according to the Independent Women's Law Center's brief. 

The miniscule percentage of humans "born with congenital conditions characterized by atypical development of chromosomal, gonadal, or anatomic sex" are not a "third sex," it argued, noting the "two genders" position has in fact gained strength in recent polling of American adults and the millennial and Generation Z cohorts.

The brief notes that "language reflecting this assumption has been adopted by every branch of the Federal Government" but also Morrison's school district, whose sexual harassment policy refers to "either gender."