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Legal Forum
Anti-Harassment Policies, Transgender Students, and Personal Pronouns
Dr. Dave Dagley, Professor Emeritus, University of Alabama and Dr. Amy Dagley, Associate Professor, University of Alabama at Birmingham
In the last month, the authors came across the first case in memory where parents have challenged the protection of transgender students under anti-bullying or anti-harassment policies, based primarily on the use of personal pronouns. The judge’s order was dated back in 2023, but did not appear in the national reporter system until this last month. The case name is Parents Defending Education v. Olentangey Local Sch. Dist. Bd. of Educ., 684 F.Supp.3d 684 (S.D.Ohio 2023).
Parents Defending Education (PDE), an organization of parents and students, sued an Ohio school district to challenge three policies prohibiting students from bullying and harassing other students based on personal characteristics, from using cellphones and tablet computers to send messages that threaten harm, embarrass or humiliate other students, and from intentionally misgendering transgender students. PDE argued that the policies violated the First and Fourteenth Amendments and moved for preliminary injunction to pause the application of the policies. PDE asked the court to declare the policies unconstitutional.
The school district’s policy number 5517 prohibits students from engaging in discriminatory harassment or bullying based on the personal characteristics of other students, such as race, national origin, sex, disability, religion, or ancestry. Policy number 5136 prohibits students from using their personal devices to send messages that threaten, humiliate, harass, embarrass, or intimidate other students. Separately, the school district has a prohibition in its conduct code against speech that involves “discriminatory language,” including the intentional misgendering of transgender students, in other words, failing to address a fellow student by a preferred pronoun. The central part of the complaint comes down to the plaintiff organization’s rejection of the use of preferred pronouns and the policies’ recognition of transgender students having a personal characteristic that warrants their protection under policies against bullying and harassment. In its complaint, the PDE argued that the contested policies require students to affirm the idea that gender is fluid, contrary to their deeply held religious beliefs.
Although this case is occurring in Ohio, it could be occurring now in any state. Alabama schools are required by statute to have similar policies. Section § 16-1-23 Code of Alabama (1975) prohibits hazing. In 2009, the Alabama Legislature required school boards to adopt policies to prevent harassment of students in the Student Harassment Prevention Act. Section § 16-28B-2 et seq Code of Alabama (1975). An amendment in 2016 required school systems to adopt a policy on student suicide prevention and directed the State Department of Education to set standards for programs to prevent student suicide. Section § 16-28B-8 Code of Alabama (1975), Ala. Acts 2016-310. In 2018 the act was expanded to include harassment of a student by another student, intimidation, violence, and threats of violence, on or off school property, online or electronically (including cyberbullying). Ala. Acts 2018-472, H.B. 366.
In the Ohio case, the PDE organization filed a motion for preliminary injunction. A preliminary injunction is a procedural measure to assist a party in speeding up or slowing down the case in its early stages. Whether a preliminary injunction is necessary requires the court to consider four elements: (1) whether the party has established that he is likely to succeed on the merits; (2) whether the party is likely to suffer irreparable harm in the absence of preliminary relief; (3) whether the balance of the equities tips in the party’s favor; and (4) whether an injunction is in the public interest. A preliminary injunction is a procedural measure deployed by either party in a case. In its analysis, the federal district court in Ohio focused largely on the first element, whether the plaintiff is likely to succeed on the merits of the case and dispensed quickly with the three remaining factors, finding that the three went against the PDE’s request for preliminary injunction. For brevity in this commentary, the authors touch below on major concepts discussed by the court.
The policies challenged reflect the school district’s attempts to combat discrimination in its schools and are patterned after anti-discrimination law. At one level, the policies are designed to protect the school district from legal liability for failure to protect its students. At another level, the policies are designed to provide an educational environment where students are safe and supported in their learning.
On the claim by the PDE that the challenged policies compelled speech by students, the federal court in Ohio distinguished between speech that directly targets individuals on account of their identity and speech that discusses a political, social, or religious perspective in a non-derogatory manner. An attack on a body of beliefs is very different from an attack on the basic social standing and reputation of an individual or a group of people. The former should be protected in the school setting; the latter should be prohibited.
There is always tension in the First Amendment between speech that is protected and speech that discriminates and harasses. (See, Harper, 445 F.3d at 1198 (Kozinski, J., dissenting), “much of what harassment law seems to prohibit, the First Amendment seems to protect.”) The court in the Ohio case listed five types of speech that can be proscribed in policy: (1) speech that threatens physical harm or violence; (2) speech that substantially interferes with educational performance, opportunities or benefits; (3) speech that substantially disrupts the orderly operation of the school; (4) speech that repeatedly and persistently creates a hostile learning environment; and (5) speech that uses derogatory language including on the basis of an individual’s identity, including the intentional misgendering of transgender students.
In the fourth and fifth types of speech listed in the paragraph above, the validity of the statements are unsettled, depending primarily upon jurisdiction. Whether the prohibition against discrimination “on the basis of sex” covers discrimination on the basis of “gender identity” has not been addressed in the Sixth Circuit appellate court, which includes Ohio. However, that question has been addressed in the Eleventh Circuit, which includes Alabama. In Adams ex rel. Kasper v. Sch. Bd. of St. Johns County, 57 F.4th 791, 811-14 (11th Cir. 2022), the Eleventh Circuit, with all judges participating “en banc,” took the view that the definition of “sex” in discrimination law was based upon biological sex (males versus females), rather than a multitude of biological components based upon cellular and chromosomal data.
Alabama’s Student Harassment Prevention Act required schools to identify and protect members of groups who are targeted for harassment. The act also required the State Department of Education to develop a model policy prohibiting harassment, violence, and threats of violence on school property, on a school bus, or at any schoolsponsored function. The model policy must address thirteen key components. The thirteenth component is published as follows:
(13) A procedure for the development of a nonexhaustive list of the specific personal characteristics of a student which may often lead to harassment. Based upon experience, a local board of education may add, but not remove, characteristics from the list. The additional characteristics or perceived characteristic that cause harassment shall be identified by the local board on a caseby-case basis and added to the local board policy. The list shall be included in the code of conduct policy of each local board. Section § 16-28B-5 (13) Code of Alabama (1975).
This last component articulates an expectation that the characteristics which warrant protection in Alabama are based upon the experience within the local school. Although the Eleventh Circuit has not yet agreed that gender identity is protected by federal anti-discrimination law, statutory law in Alabama arguably requires school districts to protect students where the school district’s experience argues that they must protect all students.
