Cases & Developments

Order granting Plaintiff’s Motion for Preliminary Injunction. The lead Plaintiff, a public high school teacher who is a transgender woman and prefers (but ceased using) she/her pronouns, sought preliminary injunction, on the basis of Title VII and the First Amendment, against a Florida Department of Education policy providing for every K-12 institution that “a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.” The court found plaintiff was unlikely to succeed on the merits of her Title VII claim, as the requirement that she be referred to as “Teacher,” rather than “Ms.,” was not an adverse employment action, and the record was insufficient to demonstrate the likelihood of success on a hostile work environment theory. Turing to her First Amendment claim, the court enjoined enforcement of the policy against plaintiff, finding that (1) plaintiff’s statement of preference of pronouns was the highly personal, self-referential speech of a citizen that could not be confused with a government-created message (following the U.S. Supreme Court’s “practical inquiry” regarding the religious expression in Kennedy v. Bremerton School District); (2) even though highly personal, the preference of pronouns is a publicly-oriented expression on a matter of “undisputed ‘passionate political and social debate;’” and (3) the State provided no evidence that the use of plaintiff’s pronouns would impede her official duties or adversely impact school operations to justify enforcing the viewpoint discriminatory prohibition in favor of the State’s preferred opinion on pronouns. 

Opinion reversing dismissal of plaintiff’s claims and remanding for further proceedings. Plaintiff, a former French teacher at West Point High School, brought First Amendment, statutory, and contract claims against the West Point School Board after it terminated him when he referred to a transgender male student by the student’s preferred name but avoided use of masculine third-person pronouns with respect to the student. In reversing dismissal and remanding for further proceedings on his First Amendment compelled speech claim, the Supreme Court of Virginia held that because he had not insisted on referring to the student by feminine pronouns the school’s concern for orderly administration played “no role as a counterbalance to a teacher’s right not to be compelled to give a verbal salute to an ideological view that violates his conscious and has nothing to do with the specific curricular topic being taught.” Because it held that he had sufficiently alleged a First Amendment violation, the court also permitted plaintiff’s contract and statutory claims to proceed, noting that his contract was not terminable at will and statute protected him from termination without just cause.   

Opinion & Order denying Preliminary Injunction. Plaintiff, a nationwide membership organization including parents and students attending the Olentangy Local School District, brought First Amendment claims against the District, challenging its policies on bullying and discriminatory harassment on the grounds that requiring students to use pronouns corresponding to a transgender student’s identity would “require the students to affirm the idea that gender is fluid, contrary to their deeply-held religious beliefs.” In denying preliminary injunction, the court held that plaintiff was unlikely to succeed on the merits under Tinker because the District’s policies “prohibit only that subset of discriminatory speech that creates a threat of physical harm, interferes with students’ educational opportunities, substantially disrupts the operation of schools, or causes or contributes to a hostile environment.”