We Sued an Ohio School District over Preferred Pronouns and Won

No law “is immune from the demands of the Constitution.” So wrote Justice Neil Gorsuch in the Supreme Court’s 2023 majority opinion in 303 Creative v. Elenis. In 303 Creative, the Court determined that the First Amendment prohibited Colorado from forcing a website designer to express messages with which she disagreed. The First Amendment, the Court noted, protects both the right to speak and the right not to speak. Disappointingly, public schools seem to have forgotten the Court’s unambiguous dictate. Despite various executive orders and federal guidance to the contrary, too many have perpetuated transgender “anti-harassment” policies that force gender-critical students to communicate messages contrary to their beliefs.

This isn’t just bad educational administration — it is unconstitutional and displays gross ignorance of basic First Amendment principles. In West Virginia v. Barnette, the Supreme Court wrote that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Ohio’s Olentangy School District attempted that kind of prohibited prescription. That’s why our organization, Defending Education, took them to court and won.

We brought suit on behalf of several Defending Education members in the district, whose children did not want to be compelled to use their peers’ preferred pronouns. We requested that the district’s “anti-harassment” speech policies be enjoined during litigation. After losing in trial court and in front of a three-judge panel in the Sixth Circuit, we successfully secured a rehearing en banc. There, we argued that the school district could not employ its “anti-harassment” policy to force students who believe that sex is immutable and fixed at birth to use mandatory “preferred pronouns.” Nor, we argued, could the school reach beyond the threshold of the schoolhouse door to enforce its anti-harassment policies on students’ personal devices and govern the conduct of children no longer under the school’s custodial and tutelary control.

By a vote of 10–7, the court agreed.

Citing the Supreme Court’s 1969 ruling in Tinker v. Des Moines, it determined that “a school district may not restrict personal speech on matters of public concern unless the speech would ‘materially and substantially disrupt’ school activities or infringe the legal ‘rights of others’ in the school community.” Writing for the majority, Judge Eric Murphy stressed that “the school district has fallen far short of meeting this demanding standard . . . it introduced no evidence that the use of biological pronouns would disrupt school functions or qualify as harassment under Ohio law.”

Murphy went on to emphasize that compelled pronoun use “skews the debate” on gender identity, and that the school district had “taken a side . . . [and] ‘targeted’ a speaker’s use of biological pronouns as improper while allowing students to use preferred pronouns (no matter how novel) . . . this differential treatment qualifies as the type of ‘viewpoint discrimination’ that raises the most serious red flags under the First Amendment.”

The en banc ruling from the court was in keeping with its earlier decision in 2021’s Meriwether v. Hartop, in which the court wrote that a “preferred pronoun” requirement was “anathema to the principles underlying the First Amendment” because “pronouns can and do convey a powerful message implicating a sensitive topic of public concern.”

That it took a request for rehearing and more than two years of litigation (including the school district’s spurious attempt to moot the case) to assert a right as old as the Constitution itself indicates a willingness by some educators to treat gender identity as sacrosanct. It further evidences an education epoch wherein certain teachers seem more interested in activism and “allyship” than education.

We need look no further than our most recent abysmal National Assessment of Educational Progress scores for proof that education has abandoned its purpose in favor of preferred identities and purported victimhood. Less than a quarter of high school seniors are numerate; little more than a third are literate in English. And now, as a result of progressive education, they are silenced as well.

As the Supreme Court has written, the free speech clause exists to stop the government from banning speech because of disdain for “its message, its ideas, its subject matter, or its content.”

In an age fraught with newspeak, it’s our hope that the courage of our member parents and their children in challenging policies like Olentangy’s will hearten those who wish to -- and should -- do the same.