Sixth Circuit Blocks Ohio School from Disciplining Students for Use of “Biological Pronouns”

An en banc panel of all 17 judges on the Sixth Circuit Court of Appeals, whose decisions are binding on Michigan schools, recently ruled that a parent group was likely to succeed on the merits of its claim that an Ohio school violated students’ free speech rights when it prohibited them from using “biological pronouns” when referring to transgender and nonbinary students, rather than those students’ preferred pronouns. In a case that highlights the tension between anti-discrimination laws and First Amendment principles, the court held that the school’s enforcement of its policies violated the First Amendment and compelled speech by requiring a student to use transgender or nonbinary students’ preferred pronouns when those pronouns were contrary to that student’s sincerely held belief. Defending Education v Olentangy Local Sch Dist Bd of Educ, No. 23-3630 (6th Cir, 2025).

The matter first arose when parents who believed that only two “biological genders” exist challenged the school’s enforcement of its nondiscrimination and anti-harassment policy, personal communication device policy, and provisions of the Student Code of Conduct. These policies and Student Code of Conduct provisions prohibited harassment and bullying based on protected classifications, including gender identity, and extended that prohibition to messages exchanged on personal communication devices. The parents asked the school whether these policies and Code of Conduct provisions required their students to use a transgender or nonbinary student’s preferred pronouns, rather than their “biological pronouns,” and questioned whether their students could be disciplined for failing to follow the policies and provisions. The school’s legal counsel told the parents that the school’s anti-harassment policy prohibited discrimination and harassment based on sex, including sexual orientation and gender identity, and that one student purposefully referring to another student with ”biological pronouns” rather than the student’s preferred pronouns “would be an example of discrimination under Board Policy.”

In response, a group of parents sought a preliminary injunction barring the school from enforcing those two policies and applicable Code of Conduct provisions. The parent group alleged that these policies and provisions: (1) compelled speech by requiring students to use preferred pronouns rather than “biological pronouns,” (2) were unconstitutionally overbroad, and (3) engaged in improper content- and viewpoint-based discrimination.

Overturning a previous decision by a three-judge panel in the Circuit, the entire Sixth Circuit panel voted (10-7) to grant the parent group’s request for what the court called a “particularly narrow” injunction. Specifically, the injunction bars the school from disciplining students solely for using “biological pronouns” to refer to transgender and nonbinary individuals without any subjective ill will” toward those individuals. The court concluded that the school’s ban on the use of “biological pronouns” regulated student speech based on the viewpoint of the speech. Further, citing Tinker, the court held that the school had not met the “demanding” standard of proving that a student’s use of “biological pronouns” for transgender and nonbinary students when motivated by a sincerely held religious belief would materially and substantially disrupt the education environment or amount to harassment under Ohio law. The court was careful to note, however, that this holding did not prohibit a school from disciplining a student for unlawful harassment or bullying separate from the use of “biological pronouns” without “ill will” towards transgender and nonbinary students.

For Michigan schools, it is important to note that no Ohio law specifically prohibits gender identity and gender expression discrimination, but Michigan’s Elliott-Larsen Civil Rights Act (ECLRA) explicitly does. We cannot predict how a court would analyze the interplay between the First Amendment and ELCRA in a similar case from a Michigan school.

This decision is fact-specific, and the injunction issued by the court is narrow. Rather than simply prohibiting the school from disciplining a student for refusing to use a transgender or nonbinary student’s preferred pronouns in any situation, the court instead issued an order prohibiting the school from disciplining students who are solely using “biological pronouns” for transgender and nonbinary students without any “ill will.” School officials must still address allegations of student-to-student harassment and bullying. Schools cannot compel speech, as the Sixth Circuit held, but a school must still address and can issue discipline for unlawful student-to-student harassment that creates a hostile educational environment or a substantial disruption.

With several significant cases on this topic pending, we continue to recommend that each issue be addressed on a case-by-case basis, with a thorough review of the facts specific to any particular matter, and in consultation with legal counsel.