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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In a decision filed 29 September, a 2-1 majority ruled that two of the three appellant issues were superceded by legislation, therefore moot.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.
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.
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