Conflicts over pronoun use have been rising around the country. There is a potentially important free speech case developing in Wisconsin. In Kiel, Wisconsin, three eighth graders are facing a Title IX complaint due to their failure to use plural pronouns “they/them” to refer to a single student. Indeed, it is reminiscent of the recent litigation involving a teacher in Loudoun County, Virginia. When the litigation involving teacher Byron “Tanner” Cross was unfolding, I noted that the most difficult such case for the district would be to impose such rules on students. This seems to be precisely that case in Wisconsin.

According to reports, the students allege that they were subject to verbal attacks for refusing to use the approved pronouns.

Wisconsin Institute of Law and Liberty demanded that the district stop the Title IX investigation. They assert that “[t]he mere use of biologically correct pronouns not only does not constitute sexual harassment under Title IX or the District’s own policy, it is also speech protected by the First Amendment.”

The pronoun controversy is mired in deep-seated religious and free speech issues. Many object to the use of such pronouns for reasons ranging from religious convictions to simple grammar. There is room for accommodation in allowing students and teachers to use first or last names. However, some pronoun use will inevitably occur. The question is whether the district can compel students to adopt such usage.

We discussed how Shawnee State recently settled a case brought by a professor over the compelled use of pronouns.

The Sixth Circuit noted that, as stated in Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019), “Universities have historically been fierce guardians of intellectual debate and free speech.”  It reversed a district court’s ruling by Judge Dlott that a professor’s speech in the classroom is not protected by the First Amendment. Accordingly, it held that “Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”

Adopting a position similar to the Fourth, Fifth, and Ninth Circuits, the appellate panel ruled:

“[O]ur court has rejected as ‘totally unpersuasive’ ‘the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.’ Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). And we have recognized that ‘a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.’ Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001); see Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1188–89 (6th Cir. 1995). Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. See Hardy, 260 F.3d at 680.”

The ruling is a major recognition and defense of free speech rights for faculty in classrooms.

The Wisconsin case does not involve an employee but students.

In 2020, the Department of Education confirmed in a letter to a member of Congress that:

“By itself, refusing to use transgender students’ preferred pronouns is not a violation of Title IX and would not trigger a loss of funding or other sanctions. To the extent any prior OCR subregulatory guidance, field instructions, or communications are inconsistent with this approach, they are inoperative. However, sex-based harassment, including that predicated on sex stereotyping, is covered by Title IX if it is sufficiently serious to deny or limit a student’s ability to participate in or benefit from an education program or activity. Thus, harassing a student-including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility-based on the student’s failure to conform to stereotypical notions of masculinity and femininity can constitute discrimination on the basis of sex under Title IX in certain circumstances. Schools have a responsibility to protect students against such harassment.”

This year, the Biden Administration issued a Notice of Interpretation declaring an intention to enforce Title IX’s prohibition on sex-based discrimination to include prohibiting discrimination based on sexual orientation and gender identity.

Wisconsin parents previously sued the state for a policy that allows their children to change their names and pronouns without parental consent.

This all sets up a major challenge over the required use of pronouns and whether such language is protected under the First Amendment.