Ohio Schools' Anti-Trans Bullying Policies Too Broad, Group Says

A conservative parents group on Thursday told a federal appeals court that an Ohio school district’s policies that bar the bullying of transgender students is too broad and should be blocked.

The language that the Olentangy Local School District has on its books isn’t allowed based on US Supreme Court case law, attorney J. Michael Connolly, who represents the group Parents Defending Education, told a Sixth Circuit three-judge panel during oral arguments in Cincinnati.

“If the school wanted to get at severe and pervasive, harassing, and bullying conduct, they’re allowed to do that,” said Connolly, a partner at Consovoy McCarthy PLLC. “But what they can’t do is what they did here, which is just write a sweeping policy that says that at all times, nobody can ever use pronouns that are not preferred by another student.”

School district attorney Bartholomew T. Freeze of Freund Freeze & Arnold pushed back. “There are certain things that a district needs to do to ensure the orderliness of the operation,” he said.

He also said the parents group is essentially seeking, “a carve-out where all students are protected from harassment under that policy except for transgender students who are harassed because they are transgender.”

The case has drawn significant interest, as multiple conservative groups and seventeen Republican-leaning states, including Ohio, have filed amicus briefs in support of blocking the policies. The American Civil Liberties Foundation and its Ohio chapter also said a judge’s decision not to temporarily block the policies should be partially overturned, saying they “prohibit far more than speech that creates a hostile environment or substantial disruption.”

Others, like the Ohio School Boards Association and the Ohio Association of School Business Officials, have urged the court to leave the policies in place.

‘Intentional Misgendering’

The case stems from several policies on the books at the Columbus-area school district, which with 23,000 students is the fourth largest in the state.

The district bars students from harassing or bullying others based on personal characteristics like race, sex, disability, and religion, and prohibits students from using devices to harass, threaten, and embarrass other students. The district’s code of conduct also says students may not use “discriminatory language,” which includes “intentionally misgendering” a student by not using their preferred pronoun.

Freeze said Thursday that the district is aware of 50 transgender students in its classrooms and that it wasn’t aware of any instance where someone intentionally didn’t use a transgender student’s preferred pronoun.

Parents Defending Education sued last year on behalf of members, including an unnamed parent and their children who attend schools in the district.

The group also sought to block the district from enforcing the policies while the case is pending. Chief US District Judge Algenon L. Marbley declined to take such a step, ruling that the group didn’t prove it was likely to succeed on its free-speech claim.

The group said in its appellant brief that the trial judge “violated bedrock principles” of First Amendment case law.

All Views Respected

The school district said in its brief that the students who sued have been subject to the policies and code of conduct for more than a decade “with neither real nor threatened discipline.” It argued that the district’s policies are legal, noting that they allow students to express their views as long as they don’t devolve into bullying or harassment as defined.

Freeze hammered this point Thursday, saying the policy protects the viewpoints of everybody, including those who believe sex is immutable.

The panel asked both sides questions, but it appeared that Connolly got the more pointed questions, especially from US Circuit Judge Jane Branstetter Stranch.

“Didn’t parent members of this litigation say that they understood being referred to by nonpreferred pronouns would make transgender students feel insulted, humiliated, and dehumanized?” asked Stranch, who attended the hearing via videoconference. She then asked whether a student calling another by a nonpreferred pronoun would be likely to disrupt learning.

Connolly said parents participating in the lawsuit understood that using nonpreferred pronouns would lead to discipline against their children because it would be considered insulting.

Still, “even if the other students do find it dehumanizing and that sort of thing, that is just offensive speech, and the Supreme Court has said over and over and over again that just because speech is merely offensive does not mean that the school has the right to punish the speech,” he argued.

The case is Parents Defending Education v. Olentangy Local School Dist., 6th Cir., No. 23-3630, oral argument 2/1/24.