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Linn-Mar schools’ transgender policy too vague, violates free speech, court rules
By not defining ‘respect,’ policy could be applied arbitrarily, according to the judge
Trish Mehaffey
Sep. 29, 2023 6:29 pm
The 8th U.S. Circuit Court of Appeals Friday dismissed part of an appeal, but will allow a freedom of speech claim to go forward by a national parents’ advocacy group suing the Linn-Mar Community School District over their policy that protects transgender and nonbinary students.
A U.S. District judge last year denied Parents Defending Education a preliminary injunction — to temporarily ban enforcement — of the school district’s policy pending a civil trial last year. The group appealed, arguing the policy violates a right of parents to direct the care, custody and control of their children, according to the appeal.
The appeals court on Friday concluded the parents’ group was likely to succeed on its claim because the policy is “void for vagueness.” The district’s policy didn’t provide adequate notice of what conduct is prohibited because it fails to define the term “respect.” Because it isn’t defined, it could cover any speech about gender identity that an administrator deems “disrespectful” of another student’s gender identity.
The undefined term of “respect” leaves the policy open to “unpredictable interpretations, and creates a substantial risk that school administrators may arbitrarily enforce the policy,” the court stated.
“We are gratified that the 8th Circuit upheld the rights of families and students in Linn-Mar,” Nicole Neily, president of Parents Defending Education, said. “It is never acceptable to prohibit speech with vague terms that allow arbitrary enforcement, especially when compelled student speech is at stake, and this sends a clear message to other districts across the country with similar bullying and harassment policies on the books.”
Linn-Mar’s policies were intended to allow all students to advocate for themselves, feel comfortable at school, receive support from staff, and work with staff and families to create a plan to help students succeed, according to school officials.
The district’s policies spell out inclusive practices for transgender students, including giving students access to restrooms, locker rooms or changing areas that correspond with their gender identity.
The parents’ group also argued the school district’s policy prevents a school from notifying parents when their child has been given a gender support plan or assumed a transgender status.
The appeals court concluded Iowa Senate File 496 provides the parents’ group with the relief requested on this part of their claim, so this claim is moot.
The bill, which passed and became law July 1, prohibits a school district from knowingly giving “false or misleading information to a parent or guardian of their child’s gender identity or intention to transition” to a different gender than listed on the student’s birth certificate.
The law also states that if a student requests a “gender accommodation” that is “intended to affirm the student’s gender identity from a licensed practitioner employed by the school district,” then they must report the student’s request to the administrator and the administrator shall report it to the student’s parent or guardian, the ruling stated.
The new law provides parents identified only by initials in the lawsuit — parents “A” through “C” — with their requested relief and the court dismissed this part of the appeal.
The parents’ group argued parents identified in the lawsuit as “D” through “G” are injured because the policy violates their children’s rights to freedom of speech, according to the appeal. These parents argue their children want to express certain opinions about biological sex and gender identity at school but fear their speech may be considered “disrespectful” and would face discipline.
The court concluded that at least one of the parents has a freedom of speech claim. The policy has made Parent “G”’s son stay quiet in school when gender identity topics arise to avoid violating the policy.
The parents’ group also argues the policy’s requirement that a child “respect a student’s gender identity” violates the Fist Amendment on several grounds.
“A student thus cannot know whether he is violating the policy when he expresses discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable during a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams,” the ruling states.”
Based on the “vagueness of the policy,” the case is remanded with directions to grant a preliminary injunction against enforcement of the portion of the policy prohibiting an intentional refusal “to respect a student’s gender identity.”
Comments: (319) 398-8318; trish.mehaffey@thegazette.com