A Public School District's Bar Against Students Referring to Transgender Classmates with Biological Sex Pronouns is Unconstitutional

In Defending Education v. Olentangy Local School District Board of Education, _ F.3d _ (6^th Cir.  2025), the United States Sixth Circuit Court of Appeals ruled that an Ohio public school district’s prohibition against students referring to their transgender classmates with pronouns that match the transgender classmates’ biological sex was unconstitutional.  The school district’s policies prohibited discrimination and harassment based on a student’s sex, including sexual orientation and gender identity.  The school district extended this policy to prohibit a student from “purposely referring to another student by using gender language that they know is contrary to the other student’s identity.”  The school district communicated that a violation of this gender language rule would be treated as discrimination.

A group of parents filed a lawsuit against the school district on behalf of their students, challenging the constitutionality of this policy.  The parents claimed that their families were devout Christians and as part of their Christian belief, they contended that there are only two biological genders that exist – male and female.

The parents filed for a preliminary injunction seeking to enjoin enforcement of this board policy.  The Ohio federal district court denied the injunction, and the parents appealed to the United States Sixth Circuit Court of Appeals, but a three-judge panel affirmed the district court’s decision to deny the injunction.  However, the parents filed a petition for an en banc hearing with all the judges of the Sixth Circuit Court of Appeals.

A majority of the Sixth Circuit Court of Appeals’ judges  found that the public school district’s policy was unconstitutional.  The school district relied on Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), in which the United States Supreme Court ruled that a public school district could restrict students’ personal speech on matters of public concern if their speech would “materially and substantially disrupt school activities or infringe on the legal rights of others in the school community.”  The public school district contended that allowing students to use biological pronouns would disrupt school functions and even qualify as harassment under Ohio law.  In the alternative, the Ohio school district argued that allowing students to use biological pronouns in reference to transgender students would infringe on these transgender students’ legal rights.

The Sixth Circuit concluded that a public school district bears a heavy burden of proving a material or substantial disruption.  Here, the public school district failed to meet its burden of proof.  There was little evidence that use of biological pronouns was inherently disruptive to the school environment.  The fact that an audience may have a negative reaction to speech fell short of satisfying the material and substantial disruptive standard.  The majority opinion reasoned that if school districts enforced a heckler’s veto – barring speech because of audience reaction, the public school district would “commit the odious viewpoint discrimination that undermines the First Amendment’s core values.”

Likewise, the Sixth Circuit was unpersuaded that the public school district’s ban against biological pronouns infringed on the legal rights of others in the school community.  The issue involving use of biological pronouns to convey a scientific and/or religious belief addressed a sensitive topic of public concern.  The Sixth Circuit acknowledged that many believe that only two sexes – male and female – exist and that a person’s immutable sex is determined at birth.  Forcing individuals to choose between either violating their scientific and/or religious belief or facing punishment for adhering to them violates the First Amendment.  The public school district improvidently embraced one side of a political policy debate, targeting a speaker’s use of biological pronouns as improper while forcing students to use preferred pronouns no matter how novel.  This type of viewpoint discrimination “raised serious red flags under the First Amendment.”

Furthermore, the Sixth Circuit rejected equating the use of biological pronouns with harassing or abusive speech.  The Sixth Circuit observed that throughout most of history and society, biological pronouns have been viewed as the proper way to refer to others and, even today, several states have passed laws that bar schools from punishing teachers or students from refusing to use preferred pronouns.

Also, the Sixth Circuit rejected the public school district’s argument that use of biological pronouns violated students’ rights under Title IX.  Again, the public school district failed to show that the use of biological pronouns created a hostile educational environment that “is so severe, pervasive, and objectively offensive that it denied its victims the equal access to education that Title IX is designed to protect.”  There was no evidence that the use of biological pronouns would deny any student equal access to their education.

The majority opinion was consistent with a previous Sixth Circuit ruling that protected a higher education professor’s First Amendment right to avoid using preferred pronouns during class discussions.  Merriweather v Hartop, 992 F3d 492 (CA 6, 2021).  In this case, the Sixth Circuit ruled that the First Amendment barred a university from punishing a professor for refusing to use preferred pronouns during class discussions.

The United States Sixth Circuit Court of Appeals covers the states of Ohio, Michigan, Tennessee, and Kentucky.  Any public school district’s prohibition against a student’s personal point of view should be based on concrete evidence of a material and substantial disruption in the school environment and/or violations of clearly defined legal rights.  Based on the Sixth Circuit decision, a public school district should proceed with caution in regulating students’ personal point of views on sexual identity and on their use of language when discussing or referring to gender-related issues.  If you have questions or want to discuss the implications of this decision further, please contact a Clark Hill educational law attorney.

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