Last week, a federal appeals court ruled that an Ohio school district cannot force students to use the “preferred pronouns” of their gender-confused peers while litigation on the matter continues. The full U.S. Sixth Circuit Court of Appeals narrowly sided 10-7 with Defending Education, a parental rights advocacy group, granting its request to block Olentangy Local School District from punishing students for addressing other students by their given names and pronouns consistent with their biological sex.

The Sixth Circuit granted Defending Education a preliminary injunction citing that the group is “likely to succeed on the merits” on its claim that students cannot be punished for using biological pronouns under the First Amendment. The en banc decision reverses earlier rulings from a district court and a three-judge Sixth-Circuit panel and sends the case back to the lower court for further proceedings “consistent with this opinion.”

According to the ruling, the Olentangy School District admitted it bars “misgendering” if it determines that speech is “discriminatory” or “rises to the level of bullying or harassment” under its code of conduct. Also, Policy 5517 authorizes the district to “vigorously enforce” discrimination based on “gender identity,” which includes “verbal” conduct. Defending Education challenged these policies as unconstitutional under the First Amendment Free Speech Clause.

Authoring the majority opinion, Judge Eric Murphy relied on a 1969 U.S. Supreme Court precedent in Tinker v. Des Moines, which upheld student free speech rights to protest the Vietnam War. 

“This case about pronouns pits two important interests against each other. On the one hand, the school district has prohibited speech (biological pronouns) that expresses a message on a matter of pressing public concern. And because the district requires other speech (preferred pronouns) that expresses a competing view, it has discriminated based on its students’ viewpoints,” wrote Judge Murphy.

Judge Murphy noted that the school district was “wrong” to consider biological pronouns as something abusive.

“Defending Education’s members want to use biological pronouns not because they seek to ridicule others but because they want to speak what they view as the truth (and cannot ‘affirm’ a view with which they disagree on a pressing matter of public concern),” Judge Murphy wrote. 

The ruling declares that the district cannot punish students for the “commonplace use of biological pronouns” or because of an “honest belief that only two genders exist and that individuals cannot change their genders.” 

“The school district may not skew this debate by forcing one side to change the way it conveys its message or by compelling it to express a different view,” wrote Judge Murphy.

Judge John K. Bush, who wrote a concurring opinion, stated that “if the First Amendment stands for anything,” it stands for freedom from a “government rewrite” of “standard English.”

“[Defending Freedom’s] speech is an honest expression of how they view reality—the core of protected speech,” wrote Judge Bush. “Government regulation is coercive whether it compels or censors—those are two sides of the same coin. In either case, the policy forces students to monitor their use of ordinary English or face punishment. That abridges speech in violation of the First Amendment.”

Liberty Counsel Founder and Chairman Mat Staver said, “The First Amendment guarantees the right to speak and the right to not speak. Government schools cannot force teachers or students to engage in ideological viewpoints that violate their religious beliefs or freedom of speech. People have a right to live according to their conscience and religious beliefs. Government schools have no business in confusing children with false gender ideology.”