Free Speech

Eugene Volokh | 11.1.2024 5:08 PM

The order granting rehearing was just filed today, so the court will reconsider the case in the coming months. Here's an excerpt from the now-vacated panel majority opinion (Judge Jane Stranch, joined by Judge Stephanie Davis), which deals with school policies that "prohibit students from repeatedly and intentionally using non-preferred pronouns to refer to their classmates":

Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) … does not require school authorities to wait for a disturbance before regulating speech, nor does it "require certainty that disruption will occur." Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause. The PDE parent-members themselves "understand[]" that use of non-preferred pronouns "will be considered 'insulting,' 'humiliating,' 'dehumanizing,' 'derogatory,' and 'unwanted' to those who want to go by different pronouns."

PDE also attached to its preliminary injunction motion an article containing a therapist's explanation that students who "have been misgendered all day" often become "traumatized," "humiliated," and "cry after school." This evidence dovetails with a study, cited by the district court, collecting literature on the "measurable psychological and physiological harms" that can be caused by use of non-preferred pronouns. And it supports the conclusion that transgender students experience the use of non-preferred pronouns as dehumanizing and that, as a result, the repeated use of such pronouns can have severely negative effects on children and young adults….

PDE … asserts that by preventing the use of non-preferred pronouns, the District's policies unconstitutionally discriminate based on viewpoint. Depending on the........

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