On November 6, 2025, a full panel of the Sixth Circuit held that disciplining students for using non-preferred pronouns to refer to transgender classmates violates the First Amendment. This decision highlights the fine line separating protected free speech and impermissible bullying and offers important factors for districts to balance when considering discipline.
Background: In 2023, a national nonprofit group representing parents sued an Ohio school district, alleging that the district’s policies and code of conduct violated the First Amendment. Specifically, the parents asserted that their children held strong religious and scientific beliefs about the immutability of gender. Expressing these beliefs by referring to transgender classmates by their biological pronouns could risk discipline for their children under the district’s code of conduct and policies. Parents specifically requested an immediate order barring the district from punishing students for misgendering others. Both the trial court and the initial tribunal at the Sixth Circuit upheld these policies, ruling in the school district’s favor. The nonprofit sought review from the full panel, which reversed.
Legal Decision: The Sixth Circuit found that the school district failed to show that using nonpreferred pronouns would either: (1) reasonably forecast material and substantial disruption; or (2) infringe on others’ legal rights. After a comprehensive review of First Amendment case law, the Court offered an important and novel analytical framework: Student speech falls on a continuum between pure political expression and non-protected speech, such as true threats, fighting words, and defamation. In considering discipline, schools must show more evidence of disruption or violation of rights for speech that resembles political expression and less evidence for comments typically not protected by the First Amendment. Here, the Court held that using biological pronouns was speech about an issue of important public concern and the district allowed one viewpoint to be expressed, but not the other. Ultimately, the district did not present enough evidence of disruption or infringement on legal rights to satisfy its burden, leading the Court to side with the parents.
Notably, this decision emphasized districts’ ability to discipline for abusive invectives that target specific students, whether transgender youth or any other individuals. The Court distinguished between using nonpreferred pronouns without ill-will and bullying or harassment as defined in federal and state law. School districts remain obligated, under this decision, to address severe, persistent, and objectively offensive conduct that creates an intimidating, threatening, or abusive educational environment.
Implications for Your District: School districts should not issue discipline for students who use nonpreferred pronouns based on an honest belief that only two genders exist or that gender cannot be changed. Additional factors to consider include:
- Districts remain obligated to address bullying, harassment, and intimidation based on protected and nonprotected categories. Reports of bullying based on transgender status must be investigated and processed in accordance with standard policies and procedures.
- Districts may wish to review policies, guidelines, and code of conduct provisions that reference gender identity or nonpreferred pronouns to ensure compliance with this holding.
- When faced with staff or students that decline to use preferred pronouns, districts can develop options that respect free speech while also valuing the safety and comfort of transgender individuals at school.
Situations involving competing rights can be challenging to navigate. Weston Hurd’s Education Law team is available to help guide your district through complex and nuanced circumstances.
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