Among other interests, the 2022 Policies violate the rights of students to freely express themselves. Since Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511 (1969), the Supreme Court has emphasized that students do not shed “their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In reaffirming Tinker more recently, the Supreme Court explained that “the school … has an interest in protecting a student's unpopular expression … because America’s public schools are the nurseries of democracy.” Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038, 2046 (2021).
Courts have held that speech around gender identity and sexual orientation is protected under the First Amendment, including in schools. Gender identity expression for all students—cisgender, transgender, and non-binary, are a fundamental expression of identity. Courts that have addressed the question, especially recently, largely agree. In Doe ex rel. Doe v. Yunits, the court held that a student’s decision to wear traditionally female clothes to school to express female gender identity, in spite of being assigned male at birth, was protected speech. 2000 WL 33162199 (Mass. Super. Oct.11, 2000) , aff'd sub nom. Doe v. Brockton Sch. Comm., 2000-J-638, 2000 WL 33342399 (Mass. App. Nov. 30, 2000). Such gender identity expression was a communicative act, “well understood by faculty and students,” and was “not merely a personal preference but a necessary symbol of her very identity.” Id. at *3; see also McMillen v. Itawamba Cnty. Sch. Dist., 702 F. Supp. 2d 699, 705 (N.D. Miss. 2010) (holding that school’s prohibition of a female student from wearing a tuxedo and bringing a same- sex date to prom violated her First Amendment rights). More recently, in affirming a transgender individual’s right to obtain documents reflecting her gender identity, another court held that “[t]he right to identify our own existence [that] lies at the heart of one's humanity” was at stake. Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 333 (D.P.R. 2018); see also Judgment, Couch v. Wayne Local Sch. Dist., No. 1:12-cv-00265-MRB (S.D. Ohio May 21, 2012) (settling case in favor of transgender plaintiff seeking to wear clothing conforming to gender identity).
By requiring transgender students to dress and adopt pronouns that conform to their biological sex, the 2022 Policies burden their expression of gender identity. On the other hand, they permit cisgender students to fully express their gender identity. These policies therefore discriminate based on viewpoint and content. See also Karnoski v. Trump, No. C17-1297-MJP, 2017 WL 6311305, at *9 (W.D. Wash. Dec. 11, 2017) (recognizing the policy penalizes transgender service members—but not others—for disclosing their gender identity, and is therefore a content-based restriction.”).
To be sure, the school may infringe on speech that “materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the school” and that “collid[es] with the rights of others.” Tinker, 393 U.S. 503, 509, 513 (1969). But the 2022 Model Policies offer no evidence that the expression of transgender students is disruptive or interfering. Students living their lives in conformity with their gender identity do not, in and of themselves, constitute a disturbance: the Policies cannot legitimately suppress “the mere presence of transgender students.” Parents for Priv. v. Barr, 949 F.3d 1210, 1228–29 (9th Cir.), cert. denied; see also Cruzan v. Special Sch. Dist., # 1, 294 F.3d 981, 984 (8th Cir. 2002) (per curiam) (concluding that a transgender woman’s “merely being present in the women's . . . restroom” did not constitute actionable sexual harassment of her female co-workers).
The Supreme Court and lower courts have, time and time again, reaffirmed “the liberty of parents and guardians to direct the upbringing and education of children.” Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925). Nonetheless, the 2022 Model Policies allow teachers to veto parents’ decisions as to what is best for their children. The 2022 Policies allow teachers to ignore the instructions of parents who seek to support their children—teachers may refer to students using pronouns that do not conform to a child’s gender identity even when parents have instructed to the contrary, and the child’s official school record has been altered to reflect the child’s chosen gender identity. 2022 Model Policies, supra, at 16.
The Policies can cite to no interest that would permit such a violation of parents’ rights to support their transgender children. To be sure, in some cases, parents’ decisionmaking for their children must give away to “medical decisions” that meet recognized “medical standards.” Parham v. J. R., 442 U.S. 584, 606 (1979). But parents and families who support transgender children act in the children’s best interests. Id. Failing to provide such support risks students’ educational outcomes, health, and lives. See Part II(B) supra. As the Third Circuit explains, “transgender students face extraordinary social, psychological, and medical risks.” Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 528–29 (3d Cir. 2018). “Mistreatment of transgender students can exacerbate gender dysphoria, lead to negative educational outcomes, and precipitate self-injurious behavior;” such discrimination “can be life threatening.” Id.
While the state may accordingly have an interest in intervening when parents do not support their transgender children to prevent these outcomes, it lacks any interest in undermining parents who support their transgender children.
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511 (1969), the Supreme Court affirmed the speech rights of teachers as well as students. The 2022 Policies require teachers to use pronouns, that, in many cases, will fail to respect the gender identity of their transgender students. 2022 Model Policies, supra, at 16. In so doing, the 2022 Policies impermissibly violate the rights of teachers.
To be sure, states can limit teachers’ speech “when the [teacher’s] expression results in a material or substantial interference or disruption in the normal activities of the school.” Nat’l Gay Task Force v. Bd. Educ. Oklahoma Cty., 729 F.2d 1270, 1274 (10th Cir. 1984), aff'd sub nom. Bd. Educ. Oklahoma Cty. v. Nat’ Gay Task Force, 470 U.S. 903 (1985) (citation omitted). However, here, the expert consensus is that that teachers who refer to transgender boys as girls, or transgender girls as boys, or who force transgender children to go to locker rooms or restrooms designated for the opposite sex, endanger the emotional and physical health of transgender students and disrupt the educational process for transgender and cisgender students alike. See Part II(B). On the flipside, teachers who support the gender identity of transgender students do not disrupt school operation—far from it. Their support, the experts agree, results in all students being protected and having a positive educational experience. See Part II(B). Accordingly, while the state has an interest in limiting teacher speech that undermines the gender identity of transgender students, it lacks any interest in undermining the speech rights of supportive teachers.
Given the harm the 2022 Policies cause to transgender students, teachers, and parents, as well as the respectfully request that they be rescinded and that the 2021 Model Policies be reinstated.
(This is the fourth part of four for our comments. Per Va. Code §2.2-4002.1(C), we request a written response to this comment from VDOE via electronic publication and to delay the effective date of the 2022 Model Policies by thirty days)