Thursday, June 3, 2021

Public School Teachers and Transgender Students and Pronouns

Caroline Mala Corbin, Public School Teachers & Transgender Students & Pronouns, Balkinization, March 19, 2020 

This is a short review essay of Helen Norton’s book, The Government’s Speech and the Constitution. It applies Professor Norton’s framework to the question of a public school teacher who refuses on religious grounds to use the proper pronouns of transgender students in their classroom. It concludes that public school teachers do not have a free speech right to misgender students. To start, how teachers address students is likely government speech, and therefore outside the scope of Free Speech Clause protection. Even if not, it fails the Pickering-Connick balancing test. First, while the topic of gender identity is without doubt a matter of public concern, at issue is not a discussion of it but a private interaction. Second, a teacher’s refusal to abide by anti-discrimination rules is highly disruptive of the school's mission given the negative impact on the education of transgender students. Finally, for a public school to accommodate the teacher may violate the Equal Protection Clause.

See also Washington Post, Loudon Teacher Files Lawsuit After Saying Won't Use Transgender Student's Pronouns

Constitutional, Education, LGBT | Permalink


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