Injunctive relief; Likelihood of success on the merits of a free speech claim; Whether defendant-school district’s gender identity policy conformed with the standards for regulating student speech established in Tinker v Des Moines Indep Cmty Sch Dist; “Compelled speech”; West VA State Bd of Educ v Barnette; FW/PBS, Inc v City of Dallas; “Viewpoint discrimination”; Overbreadth challenge; Parents Defending Education (PDE)

The court affirmed the district court’s denial of plaintiff-parent organization’s (PDE) request to preliminarily enjoin defendant-school district’s gender-identity policies relating to pronoun use because it was unlikely to succeed on the merits of its free speech claim. The school district had policies prohibiting harassment based on a variety of protected characteristics, including gender identity. Three of the policies “prohibit the intentional use of pronouns inconsistent with a student’s gender identity where such use rises to the level of harassment.” While there was no evidence any student had been disciplined under the policy for “repeatedly and intentionally using non-preferred pronouns to refer to their classmates[,]” PDE unsuccessfully sought to enjoin enforcement of the policies, citing the First Amendment Free Speech Clause. On appeal, the court considered whether the school district’s policies complied with the standard for regulating student speech established in Tinker, and whether PDE was likely to succeed on the merits. In Tinker, the Supreme Court held that schools can prohibit speech “where officials have a reasonable basis to believe that the speech will either substantially disrupt school activities or interfere with the rights of others.” Schools are also permitted to prevent disruptions before they occur. The court noted that “[e]ven this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause. . . . [A]t this point, PDE has not carried its burden to clearly show that prohibiting this speech likely violates Tinker or its progeny.” As for the “compelled speech” claim, the court acknowledged that “[o]ne premise of PDE’s compelled-speech argument—that the intentional use of one pronoun rather than another represents speech subject to the First Amendment’s protection—is supported in caselaw.” But it concluded PDE failed to support its claim that the speech was compelled where it is unnecessary for one student to use a pronoun where they can use a classmate’s name. “Outside instructional time, moreover, students may elect to not refer to their transgender classmates at all. This choice to not speak mirrors the generally accepted accommodation for students morally opposed to reciting the Pledge of Allegiance.” The court rejected PDE’s contention that by preventing the use of non-preferred pronouns, the policies constitute discrimination based on viewpoint. It also rejected PDE’s challenges under the overbreadth doctrine.