If you want to see how the nutty, biology-defying gender ideology of the radical left has infected school boards and administrators even in conservative, saner parts of the country, you need only read the recent opinion of the 8th U.S. Circuit Court of Appeals in Parents Defending Education v. Linn Mar Community School District.
A three-judge panel of the court overruled a district court and instructed it to issue a preliminary injunction against enforcement of a school board policy in Iowa that would have disciplined students for expressing opinions that diverge from leftist gender orthodoxy—specifically, for refusing to “respect” a student’s gender identity.
In April 2022, the Linn Mar school district board passed a policy intended to “address the needs of transgender students, gender-expansive students, nonbinary, gender nonconforming students, and students questioning their gender.”
The policy prohibited school administrators, teachers and counselors from informing parents that their children were having to cooperate with or were undergoing “gender support” accommodations for transgender students “regarding names, pronouns, restroom and locker facilities, overnight accommodations on school trips, and participation in activities.”
Any refusal to “respect a student’s gender identity” would violate the school’s prohibitions against bullying and harassment, which could lead to suspension and expulsion. Gender identity was defined by the favorite psychobabble of progressives—namely, a student’s “deeply-held sense or psychological knowledge of their own gender.”
Parents Defending Education sued on behalf of parents with students in the Linn Mar system. They claimed violations of the First and 14th amendments for violations of their substantive due process right “to direct the care, custody, and control of their children” and violation of “their children’s right to freedom of speech.”
Fortunately, the school board’s secrecy provision was overridden when the Iowa General Assembly passed a bill, signed by the governor, in the middle of the litigation that prohibited school districts from hiding information from parents or giving them “false or misleading information” about a student’s “gender identity or intention to transition to a gender” different from what is listed on his or her birth certificate.
The new law requires school administrators to notify parents of a student’s request for “gender accommodation.”
As for the First Amendment claim, the court determined that at least one student in particular was being prevented from speaking his mind out of fear that he would be disciplined, thus giving him and his parents standing to sue.
The school board‘s contemptuous attitude toward the free-speech rights of students was evident. As the 8th Circuit summarized in its opinion, one of the parents explained that her son wanted to “state his belief that biological sex in immutable,” disagree “with another student’s assertion about whether they are male or female,” state that biological males should not be allowed to compete in female athletics, and express “discomfort about sharing bathrooms with teachers or students of the opposite biological sex.”
Yet the school board argued that “the suggested activity” and speech of the student was not “affected with a constitutional interest” because “harassment or bullying on the basis of gender is not protected speech within the school environment.”
Fortunately, the appeals court didn’t buy it: “A school district cannot avoid the strictures of the First Amendment simply by defining certain speech as ‘bullying’ or ‘harassment.’”
The court concluded that the parents would likely succeed in their claim that inflicting punishment on students for failing to “respect a student’s gender identity” is “void for vagueness” and thus a violation of the First Amendment.
A “government policy,” the court said, is “unconstitutionally vague if it fails to ‘provide adequate notice of the proscribed conduct’ and lends ‘itself to arbitrary enforcement.’”
The failure of the school board to define “respect,” the court concluded, means that the policy could cover any speech about gender identity that a school administrator deems “disrespectful” of another student’s gender identity.
Students cannot know whether they are violating the policy when expressing discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable in a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams.
Moreover, the lack of clarity over the meaning of “respect” left the policy open to differing interpretations by teachers and administrators and created a “substantial risk” of arbitrary enforcement.
The school board has the right to appeal this decision by either asking for an en banc review, which is when the entire appeals court reviews the case, or to go directly to the Supreme Court to ask it to review the decision.
What the school board should do instead is realize that it made a grievous error in implementing this restrictive, unconstitutional policy and get rid of it in its entirety.
This piece originally appeared in The Washington Times