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Federal Court: Iowa School District Cannot Make Children 'Respect A Gender Identity'
Free speech is back, America
The 8th U.S. Circuit Court of Appeals has ruled that an Iowa school district cannot compel children to “respect a student’s gender identity.”
In a decision filed 29 September, a 2-1 majority ruled that two of the three appellant issues were superceded by legislation, therefore moot.
However, the court ruled that the policy of Linn Mar Community School District requiring students to “respect” each others’ “gender identities” was overbroad.
“The District asserts that ‘respect’ requires only the use of a student’s preferred name and pronouns, and does not prohibit ‘general opinions’ about gender identity,” the court writes.
Absurdly, “The district court concluded that the policy ‘appears’ to be so limited, because the paragraph regarding refusal to ‘respect a student’s gender identity’ is set forth at the end of a section headed ‘Names and Pronouns.’” Emphasis added:
We are not convinced that a student may rest assured that the policy is as narrow as the District asserts in litigation. Even assuming for the sake of analysis that the District could dictate a student’s use of names and pronouns, the plain meaning of the policy is not so limited. The policy threatens discipline for a refusal to “respect a student’s gender identity,” not for a refusal to respect a student’s preferred name or pronoun. The term “gender identity” is defined as “[a] person’s deeply-held sense or psychological knowledge of their own gender”—a capacious concept that likely goes well beyond a name and a pronoun. That a defined term is used under a section heading does not change the meaning of the defined term.
Indeed, ‘gender identity’ is quite a “capacious” concept in application. Practically anything anyone says can be framed as offensive, while even the most offensive demands of the gender lobby are presented as minimal conditions for life.
Lia Thomas will literally die unless we let him cheat at sports and walk naked through the women’s locker room. Objections are ‘hate speech.’
“Without meaningful guidance, District officials are left to determine on an ‘ad hoc and subjective basis’ what speech is ‘disrespectful’ and subject to discipline, and what speech is acceptable,” the court writes.
“We are gratified that the 8th Circuit upheld the rights of families and students in Linn-Mar,” Nicole Neily, president of ‘Parents Defending Education’ (website), said in a statement.
It is never acceptable to prohibit speech with vague terms that allow arbitrary enforcement, especially when compelled student speech is at stake, and this sends a clear message to other districts across the country with similar bullying and harassment policies on the books. The Eighth Circuit also made clear that Linn-Mar’s parental exclusion policies are now unlawful throughout the State of Iowa. Yet these policies remain on the books in far too many districts across the country. Parental exclusion policies are a loser in the court of public opinion – and I have no doubt that they will eventually be struck down in the court of law as well.
Former Vice President Mike Pence also praised the decision. If these endorsements seem ominous as politics, though, consider the concurring decision of Judge Jane L. Kelly, a Barack Obama nominee.
Appending the 8th Circuit decision, Kelly writes that the District policy is intended to keep the system in line with federal and state laws against bullying. At both levels, laws specifically prohibit “repeated or intentional misgendering.”
Clearly, Kelly believes in the good intentions of the District. “Nevertheless, I concur in the outcome of this case,” Kelly writes, because her liberal constitutional principles are stronger than her sympathy for the intended goal.
The constitutional problem with Board Policy 504.13-R is that it proscribes acts or conduct that intentionally or persistently do not “respect a student’s gender identity,” and fails to provide meaningful guidance as to what falls within the scope of the word “respect.” In doing so, Board Policy 504.13-R is likely too vague about what speech it proscribes, making it potentially susceptible to arbitrary enforcement.
Anti-bullying laws were supposed to improve the mental health of vulnerable students, but the era of hurty feels being criminalized at school has instead seen a deep and wide collapse of mental health in young people.
To be sure, correlation is not causaiton. Yet the kids are now being told to live lies as authentic truths and make decisions regarding adult sexuality that they should not have to even think about. Enforced silence only adds further stress.
Judge Kelly does not address the sociological implications. However, her concurring opinion is warning sign for advocates of pronoun blasphemy codes and speech regulations.
Kelly graduated from Harvard Law with Obama. If someone like her says that his signature education legislation cannot override the First Amendment rights of students, then that entire project is doomed in federal courts.
No set of guidelines on the scope of what counts as “respect” or “disrespect” will ever contain the capacity of juvenile minds to circumvent and undermine verbal limitations and mandates, or to apply those rules creatively in order to bully someone over the fairest words.
Schools do not create peaceful middle ground this way; they just turn the faculty into speech police instead of teachers.
Federal Court: Iowa School District Cannot Make Children 'Respect A Gender Identity'
Hooray!
Those who fear that gender critical voices won't be heard over the din of the advocates for Trans. Inc. will be heartened to learn that the five organizations filing friend-of-the-court briefs on behalf of the school board were outnumbered by more than ten-to-one. Sixty-one friends supported the plaintiff-appellant Parents Defending Education. They included 18 states (the Confederacy minus Florida and North Carolina plus Alaska, Arizona, Idaho, Kentucky, Montana, Nebraska, Oklahoma, Utah and West Virginia) and a cluster of organizations whose anti-gay activism make them dangerous allies of convenience to gender critical lesbian and gay Americans.
The majority opinion contains the following encouraging passage:
"The District’s policy does not provide adequate notice of what conduct is prohibited, because it fails to define the term 'respect.' As the district court acknowledged, 'respect' has various meanings. Because the policy does not define or limit the term, it could cover any speech about gender identity that a school administrator deems 'disrespectful' of another student’s gender identity. A student thus cannot know whether he is violating the policy when he expresses discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable during a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams."
This text is a double-edged sword. It is beneficial since it articulates one of the legal grounds for allowing one of the parents to proceed with their First Amendment challenge to the District's policy. On the other hand, it is well known that progressives believe members of marginalized identity groups are so fragile that they can be harmed merely by exposure to information with which they disagree. The opinion contains a list of the topics the son of one of the plaintiffs would discuss at school if he were not afraid of being punished: "Parent G asserts that her son wants to 'state his belief that biological sex is immutable,' 'disagree with another student’s assertion about whether they are male or female,' 'stat[e] that a biological male who identifies as female should not be allowed to compete in women’s sports,' and 'express discomfort about sharing bathrooms with teachers or students of the opposite biological sex.' " The parent claims such discussions would be protected political speech. However, what is to keep the District from prohibiting them on the grounds that such conversations would create a "hostile school environment" for so-called trans kids even if they were to take place in a classroom?
In closing, it should be noted that the Court did not rule on whether the school district could sanction students for failing to use "trans" or "nonbinary" classmates' preferred names and pronouns. If the school board were to toss out its current vague rules and replace them with the clear obligation to use other students' preferred names and pronouns, would the Court find the District in compliance with the law and the U.S. Constitution? It is well understood that K-12 students enjoy narrower First Amendment free-speech protections than adults. While it is easy to see how a student could violate the rule solely to harass a classmate, as a society do we really want to turn "deadnaming" and "misgendering" into punishable offenses anywhere?
Let's not forget that the US Supreme Court has used the compelled speech theory to strike down or carve out exceptions to several laws. What is a rule obligating students to honor preferred pronouns and names under threat of disciplinary action if not a case of being force to parrot's the government's line on an aspect of gender identity?