The original opinion, by Judge Jane Stranch, joined by Judge Stephanie Davis, with Judge Alice Batchelder dissenting, has now been vacated and will be reheard, en banc. At Volokh Conspiracy, Eugene revisits the initial ruling which, I contend, reflects an excellent example of the logical fallacy of “begging the question.”

The problem is that the rationale of the majority in the original opinion cannot reach a conclusion without deciding the merit of the underlying question as to the efficacy of gender identity. This is not to say which way the court should come out on the question, or what the right or wrong decision may be, but that skipping over the issue and assuming its legitimacy, as recognized in the Batchelder dissent, undermines the majority’s rationale.

Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) … does not require school authorities to wait for a disturbance before regulating speech, nor does it “require certainty that disruption will occur.” Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause. The PDE parent-members themselves “understand[]” that use of non-preferred pronouns “will be considered ‘insulting,’ ‘humiliating,’ ‘dehumanizing,’ ‘derogatory,’ and ‘unwanted’ to those who want to go by different pronouns.”

PDE also attached to its preliminary injunction motion an article containing a therapist’s explanation that students who “have been misgendered all day” often become “traumatized,” “humiliated,” and “cry after school.” This evidence dovetails with a study, cited by the district court, collecting literature on the “measurable psychological and physiological harms” that can be caused by use of non-preferred pronouns. And it supports the conclusion that transgender students experience the use of non-preferred pronouns as dehumanizing and that, as a result, the repeated use of such pronouns can have severely negative effects on children and young adults….

That those who believe in the efficacy of gender identity also believe in the harm caused by the failure to recognize, accept and accommodate gender identity is neither surprising nor particularly controversial. When you’re reared to believe that something is damaging and harmful, then you will believe it to be damaging and harmful, and damage and harm will ensue when accommodations are not made. In this case, the school district mandated that accommodations be made in order to avoid the disruption that the failure to accommodate would cause.

Although the Supreme Court has suggested that “it might well be appropriate to tolerate some targeted viewpoint discrimination in [the] unique setting” of public schools, our precedent requires that restrictions on student speech be consistent “with both the Tinker standard and Rosenberger‘s prohibition on viewpoint discrimination.”

Applying this standard in the public school context, we have explained “that a blanket ban on the use of `odious racial epithets’ by ‘proponents of all views’ constitutes mere content-based regulation, while a ban on the use of racial slurs by one group of speakers but not ‘those speakers’ opponents’ constitutes viewpoint-discrimination.”

Notably, the majority compares a mandate to use preferred pronouns to racial epithets. While it is obviously possible for people of all races to use racial epithets against people of other races, is there any comparable analogy for gender identity? Judge Batchelder takes this to task.

As I understand it, the plaintiffs’ position—based on their scientific (biology, physiology, and genetics) and religious beliefs—is that biological gender is immutable, people are either male or female, and there is no such thing as “gender transition”; that is a made-up thing, imaginary or make believe, and a public school cannot force their children to pretend it is a real thing. Agree or disagree, but that is their position.

In that light, the speech at issue here concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering. The Olentangy Local School District’s view—contrary to Parents Defending Education’s—is that there is such a thing as gender transition; it is real, worthy of recognition and, in fact, worthy of protection in the public schools. Why else would the District require preferred pronouns, prohibit biological pronouns, or press the odd compromise of no pronouns at all? Therefore, the governmental authority (the District) has taken a clear position (viewpoint) in which all of its captive subjects (students) must affirm the existence of gender transition (either through words or silence), regardless of their own view. This is a viewpoint-based regulation of speech.

Does the district take sides in a contentious debate by mandating that students (captives, given that they are require to attend school) who do not believe that such a thing as gender transitioning converts a person to the opposite sex must nonetheless adopt the preferred pronouns subject to punishment? Do you believe in ghosts?

The majority also concludes that there is no viewpoint problem here because the District has expressed no view about whether gender transition is good or bad, and the students remain free to discuss or debate it. That is like saying the school has taken no viewpoint on ghosts when it has students debate whether ghosts are good or evil. But the plaintiffs’ point would be that there is no such thing as ghosts! And the school has no business forcing children to believe in ghosts. Again, whether you agree or disagree, PDE’s position is that gender transition is fictitious, just like ghosts.

One of the primary arguments in favor of accommodating the preferred pronouns of those students who embrace a different gender identity is that it’s nothing more than a matter of courtesy. If someone wants to be called “Jack” rather than their given name of John, ordinary courtesy suggests that others should do so as a matter of politeness. And if they would prefer to be called “Skippy” rather than John, so what? It’s still just a matter of courtesy.

The problem that goes unresolved is that the district does not rely on “simple courtesy,” but on a rule requiring students to do so, with students to be punished for their failure to do so. The other problem raised is that the preferred name does not implicate a viewpoint that may conflict with a student’s belief that he or she is being compelled to be party to a fictional ideological view.

At some point, it becomes necessary for a court to determine that gender identity is not merely a legitimate view, but the only legitimate view, or the mandate that students use other students’ preferred pronouns is unconstitutional viewpoint discrimination. That there may be disruption in one direction, toward those students who believe in gender identity, is no more worthy of protection than disruption in the other direction, toward those students who do not. Without resolving this underlying issue, the majority decisions begs the question.