Attorney
Kennedy & Graven, Chartered
School districts across the country are grappling with the intricacies of developing policies to address the needs of transgender, non-binary, and gender nonconforming students. Such policies can be particularly difficult to craft and enforce because they implicate the sometimes-competing interests and legal rights of parents, employees, transgender students, and other students. A recent decision issued by the United States Court of Appeals for the Eighth Circuit in September 2023 highlights the challenges school districts face in developing these policies and provides some useful guidance for ensuring a district’s policy passes legal muster.
In Parents Defending Education v. Linn Mar Community School District, the Eighth Circuit considered a challenge to an Iowa school district policy that set forth rules to “address the needs of transgender students, gender-expansive students, nonbinary, gender nonconforming students, and students questioning their gender.” The policy provided for the development of “gender support plans” and required the district to keep students’ gender identities confidential, even from their parents, unless authorized by the students. The policy also contained a section entitled “Names and Pronouns,” which specified that any intentional or persistent refusal by staff or students to “respect” a student’s gender identity would violate the district’s anti-harassment and anti-bullying policies. Violating the policy could result in discipline, including potential suspension and expulsion.
Parents Defending Education and several anonymous parents sued the school district in federal court, alleging the policy violated students’ First Amendment free speech rights and parents’ rights under the Fourteenth Amendment to direct the upbringing of their children. The district court denied the plaintiffs’ motion for a preliminary injunction against the policy, concluding in part that the plaintiffs were not likely to succeed on the merits of their claims.
On appeal, the Eighth Circuit partially reversed the district court’s decision. The Eighth Circuit first concluded the plaintiffs’ Fourteenth Amendment challenge to the gender support plan and confidentiality provisions was rendered moot by a new Iowa law barring school districts from providing false or misleading information to parents about a student’s transgender status. The court therefore dismissed that part of the appeal.
On the First Amendment challenge, however, the Eighth Circuit determined the plaintiffs were likely to prevail on their argument that the provision requiring “respect” of a student’s gender identity is unconstitutionally vague. The school district contended that the term “respect” required only the use of a student’s preferred name and pronoun and did not prohibit students from expressing “general opinions” about gender identity. But the court determined that, “[e]ven assuming . . . the District could dictate a student’s use of names and pronouns,” the text of the policy was not so limited. Importantly, the policy did not define the word “respect,” which led the court to conclude that “[t]he policy broadly prohibits a refusal to ‘respect a student’s gender identity’” but “does not provide adequate notice of what conduct is prohibited.” As a result, the court reasoned the policy “could cover any speech about gender identity that a school administrator deems ‘disrespectful’ of another student’s gender identity,” including expressions of opinion about the immutability of biological sex or the participation of transgender students on single-sex sports teams. In addition, the court determined that the “lack of clarity” in the provision leaves the policy open to “unpredictable interpretations . . . and creates a substantial risk that school administrators may arbitrarily enforce the policy.” Having concluded the “respect” provision is likely void for vagueness, the Eighth Circuit remanded the case to the district court to grant a preliminary injunction against the enforcement of that portion of the policy.
In a concurring opinion, Judge Jane Kelly emphasized the difficult position in which the school district was placed in drafting a policy addressing student gender identity. On the one hand, federal and state law obligates school districts to prevent harassment, bullying, and discrimination against students on the basis of sex. Iowa state law expressly extends that protection to gender identity (as does Minnesota law under the definition of “sexual orientation” in the Minnesota Human Rights Act), and some federal courts outside the Eighth Circuit have held the same under the federal civil rights law Title IX. On the other hand, school districts must ensure they are not running afoul of students’ constitutional free speech rights. In Judge Kelly’s view, the policy’s goal of ensuring “a safe, affirming, and healthy school environment” for all students was both “appropriately inclusive” and “mandated by law,” even though the district “may have used language that is insufficiency tailored to its effort to achieve this goal.”
The import of Parents Defending Education is limited by its narrow scope, and the decision did not address the more contentious issues of parental notice/consent and a school district’s authority to require the use of preferred names and pronouns. Nonetheless, the case underscores the need for school districts to be cautious in developing policies intended to prevent harassment, bullying, and discrimination on the basis of gender identity. Policy language must specifically identify the types of conduct prohibited, and it must otherwise carefully balance the school district’s obligation to prevent discrimination with its concomitant duty to preserve the right to free speech. School districts should closely consult with their legal counsel in drafting such policies.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Shannon M. Smith is an attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact her at (612) 337-9302 or ssmith@kennedy-graven.com.
© Shannon M. Smith (2023). Used by permission.
