Recently, a few instructors refused to refer to their transgender students by the names or pronouns that corresponded to their gender identity during class. After the instructors were disciplined, they filed lawsuits. Although their lawsuits included various legal claims, this article examines only whether instructors have a free speech right under the First Amendment to refuse to use a student’s name or pronoun in class.

Constitutional Context: Educator Speech in K–12 Classrooms

A K–12 public school classroom is a nonpublic forum where students are considered to be a captive audience with impressionable minds. Thus, limitations placed on educators’ classroom speech have often been upheld by courts. For example, educators’ free expression in the public school classroom can generally be curtailed if the speech is not related to a legitimate pedagogical concern. Likewise, educator speech in the classroom can be restricted if the expression is related to the educator’s official job duties. According to the Supreme Court, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Under the Garcetti v. Ceballos decision, for example, when a teacher refuses to recognize a student’s affirmed name, this action could arguably be linked to that instructor’s official job duties. As will be discussed below, the Garcetti decision has been applied differently between the K–12 and higher education contexts.

Recent Federal Circuit Court Opinion

The Sixth Circuit Court of Appeals—Kentucky, Michigan, Ohio, Tennessee—was the first circuit court to address names and pronouns concerning transgender students. A philosophy professor at Shawnee State University in Portsmouth, OH, challenged a university policy that required him to address transgender students by their chosen names and pronouns. As a compromise, he proposed to address transgender students by their last names. University officials later suggested that he address transgender students by their pronouns or stop using all gender-based pronouns when referencing any student. After an internal investigation, officials in the Title IX office argued that he was creating a “hostile environment” and violating the campus’ nondiscrimination policy. After another internal investigation, a letter of reprimand was placed in the professor’s file.

The professor alleged that this policy violated his rights to free speech, among other claims. The federal district court had dismissed the professor’s complaint, finding his speech was not protected. The Sixth Circuit Court of Appeals reversed that decision, citing a plausible violation of his First Amendment rights. Specifically, while examining the Garcetti decision, the Sixth Circuit reasoned that Garcetti would not likely apply to a case involving speech related to university-level scholarship or teaching. According to the court, professors at public universities who perform academic functions retain First Amendment protections. It should be noted that at this stage of the litigation, the court was only addressing the university’s motion to dismiss the complaint and, therefore, the professor’s factual allegations were assumed to be true. Once this case is sent back to the court it will more fully analyze the university’s defenses.

Although the Sixth Circuit decision was a higher-​education case, the next section explains whether the outcome might apply in the K–12 context. Specifically, two pending cases at the K–12 level also address the issue of names and pronouns that correspond to students’ gender identities in the classroom. The Meriwether v. Hartop decision might have implications for K–12 educators within the Sixth Circuit, but there are some important differences between K–12 and higher education contexts that should be noted.

Recent K–12 Controversies Involving Chosen Names

A 2020 lawsuit in Indiana involved a school district that adopted a policy allowing students experiencing gender dysphoria to change their names in the school database; teachers were asked to use these names. A music teacher worked out a plan with school officials to refer to all students by their last names to avoid using transgender students’ chosen names. This last name plan was eventually dropped after it created additional tension in the school. The teacher was allegedly forced to resign, and he sued the school district. The school district moved to dismiss the lawsuit, and the federal district court dismissed 11 of the teacher’s 13 claims. The case is ongoing with the two remaining claims. This article only discusses how the court addressed the teacher’s First Amendment speech claim.

The teacher argued that he was expressing himself about a matter of public concern by refusing to speak about gender dysphoria. The court found that he never really linked this refusal to a matter of public concern and that the way he addressed students was part of his official job duties as a teacher. While applying the Garcetti case, the court observed that although addressing students by name may not be part of the course curriculum, it would be difficult to imagine how a teacher could perform his duties without a method to address students by name. The federal district court noted that public employees must accept certain limitations in the workplace. In Virginia, a French teacher also refused to use a transgender student’s pronouns. That teacher was eventually fired. This case is also ongoing and involves state law claims. Most recently, parents in Madison, WI, challenged a similar school policy related to stated names and pronouns.

As noted above, it remains unclear whether the Meriwether decision may have implications for the K–12 cases considering the different ways Garcetti has been applied within higher education and K–12 schools. Thus, in K–12 schools, it remains to be seen (and likely doubtful) if teachers can successfully argue that they have a right to free speech when refusing to use a student’s appropriate pronoun or chosen name under Garcetti.

Concluding Thoughts

It is important to note that the Sixth Circuit case states only the law within that court’s jurisdiction. As new cases focused on whether a K–12 educator has a First Amendment right to refuse to use a transgender student’s name or pronoun in class emerge, those verdicts will likely depend on the specific facts surrounding a teacher’s speech claim and how that jurisdiction has addressed educator classroom expression in the past. Accordingly, school personnel should inquire about, and perhaps seek legal guidance on, how courts in their jurisdiction view this issue.

Beyond the legal matters involved, school officials should continue to monitor new research in this area. To be certain, studies have reported that when transgender, gender nonconforming, or gender-fluid students’ gender identities are not accepted, it can impact their overall well-being. Indeed, schools should be safe and affirming places for all students. It is reasonable to assume that when an instructor is asked to use a certain pronoun or name, this request relates to recognizing a student’s core identity. When an instructor fails to respect this request, this action might be perceived as intentionally demeaning to students.

Suzanne E. Eckes is a professor at the University of Wisconsin-Madison in Madison, WI. She is a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association. Guy John Rosilez is a student at the University of Wisconsin Law School. He is the 2021–22 president for the law school’s LGBTQIA+ organization, QLaw.

References

  • Eckes, S. (2020). Pronouns and preferred names: When public school teachers’ religious beliefs conflict with school directives. Educational Researcher. Retrieved from doi.org/10.3102/0013189X20943198.
  • Garcetti v. Ceballos, 547 U.S. 410 (2006).
  • Kluge v. Brownsburg Cmty. Sch. Corp., 2020 U.S. Dist. LEXIS 2672 (S.D. Ind. 2020).
  • Kosciw, J. G., Clark, C. M., Truong, N. L., & Zongrone, A. D. (2020). The 2019 National School Climate Survey: The experiences of lesbian, gay, bisexual, transgender, and queer youth in our nation’s schools. New York: GLSEN.
  • Lewis, M., & Eckes, S. (2020). Storytelling, leadership, and the law: Using amicus briefs to understand the impact of school district policies and practices related to transgender student inclusion. Educational Administration Quarterly, 56(1), 46-88.
  • Meriwether v. Hartop, 2021 U.S. App. LEXIS 8876 (6th Cir. 2021).
  • Richmond, T. (Feb. 18, 2020). Parents sue Madison schools over transgender policy. Associated Press. Retrieved from apnews.com/article/b339ee3eb623849659184af9fff49d7b.
  • Russell, S., Pollitt, A., Li, G. & Grossman, A. (2018). Chosen name use is linked to reduced depressive symptoms, suicidal ideation, and suicidal behavior among transgender youth. Journal of Adolescent Health. Advance online publication. Retrieved from doi.org/10.1016/j.jadohealth.2018.02.003.
  • Vlaming v. West Point Sch. Board et. al. (2019). Complaint. Retrieved from adflegal.org/sites/default/files/2020-09/Vlaming%20v.%20West%20Point%20School%20Board%20-%20Complaint.pdf.