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Important Takeaways: The 8th Circuit Court of Appeals ordered a preliminary injunction on enforcement of a school district policy that prohibited students and staff from disrespecting the gender identity of other students, holding that the policy was too broad.
Facts: Parents Defending Education (Parents) filed a lawsuit challenging a policy by the Linn Mar Community School District in Iowa (the District). The policy was designed to help and support transgender students. One section of the policy addresses names and pronoun usage. The policy said that a student has the right to be addressed by a name and pronoun that corresponds to their gender identity and that any intentional or persistent refusal by staff or students to respect their gender identity violates school board policies.
Parents is a group whose goal is to prevent politicization in schools. Two parents of the group have children with developmental disabilities who claimed their disabilities make them more likely to assert a gender identity different from the sex they were assigned at birth. The parents fear the District will create a Gender Support Plan without their knowledge or consent. Other parents in the group had the same concern. Other parents had concerns that their children would have to respect another child’s gender identity when they do not believe people can transition from one sex to another.
The complaint alleged that the policy violates the First and Fourteenth Amendments. Parents claim the policy violates their substantive due process rights to direct care, custody, and control of their children and violates children’s right to free speech. Parents also wanted to ensure that no child is given a Gender Support Plan or assume transgender status without notification of their parents. Parents sought a preliminary injunction asking that the policy be unenforceable. The injunction was denied, and Parents appealed the case to the 8th Circuit Court of Appeals.
The 8th Circuit held that the substantive due process claims were moot because the Iowa legislature had passed a law that prohibits a school district from knowingly giving false or misleading information to the parent or guardian of a student regarding the student’s gender identity or intention to transition to a gender that is different than the sex listed on the student’s official birth certificate. Any requests by students for transgender accommodation must be reported to their parents under this law.
Parents argued that the law does not make their claims moot because although it forbids a school from giving misleading information, they can still withhold information entirely. The Court explained that the law does require a school district to notify a parent when a child requests a gender accommodation from a licensed practitioner employed by the school district, therefore forbidding a school to withhold the information entirely. Even if the student requests the accommodation from another school employee, the policy dictates that the school administrators shall work with the student to identify and coordinate support, and the law requires a report to a parent when a student requests gender support. The Court held the substantive due process claim was moot.
On the First Amendment claim, Parents argued that the students’ speech has been chilled by the prospect of the policy’s enforcement. Parents claimed that their children wish to express opinions at school about biological sex and gender identity but fear that their speech may be considered disrespectful of another’s gender identity and then disciplined. The District argued that the suggested activity is not constitutionally protected activity because harassment of bullying based on gender is not protected speech. The Court held that the District cannot avoid the First Amendment by calling speech bullying or harassment. The proposed speech is arguably affected by a constitutional interest.
The Court held that the policy was likely too vague and did not provide adequate notice of what conduct is prohibited because it does not define the term respect. It was not clear what conduct a student or staff could be disciplined for. The Court held Parents were likely to succeed on the merits of the First Amendment claim because the policy was vague, and the case was remanded with directions to grant a preliminary injunction against enforcement of the portion of the policy prohibiting an intentional or persistent refusal to respect a student’s gender identity.
What this Means: in the 8th Circuit, policies that prevent students and staff from not using names or pronouns that align with a student’s gender identity may not be enforceable if they are too broad. This issue has not been litigated in the 9th Circuit, where Montana is located but similar legislation to the Iowa legislation used in this case. We expect to see policy and legislation challenges on these issues as more legislation passes and school policies are developed.
To avoid the inability to enforce policies, districts should ensure that policies are clear about what conduct is prohibited and what disciplinary measures could be taken if the policy is violated.
About this case: Parents Defending Education v. Linn Mar Community School District, 8th Circuit Court of Appeals, September 29, 2023. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, Kevin, and Kali at 406-542-1300 to discuss these issues.