From Parents Defending Education v. Linn Mar Community School Dist., decided Sept. 29 by the Eighth Circuit (Judge Steven Colloton, joined by Judges Duane Benton and Jane Kelly):
The disputed policy is entitled "Administrative Regulations Regarding Transgender and Students Nonconforming to Gender Role Stereotypes." The policy was adopted in April 2022 as Board Policy 504.13-R. The policy sets forth regulations for the District that "address the needs of transgender students, gender-expansive students, nonbinary, gender nonconforming students, and students questioning their gender to ensure a safe, affirming, and healthy school environment where every student can learn effectively." …
[One section of the policy] is headed "Names and Pronouns." The policy provides that a student has "the right to be addressed by a name and pronoun that corresponds to their gender identity." The fourth and final paragraph under this heading states that "[a]n intentional and/or persistent refusal by staff or students to respect a student's gender identity is a violation of school board policies," including "anti-bullying" and "anti-harassment" policies. The policy defines "gender identity" as "[a] person's deeply-held sense or psychological knowledge of their own gender." A student who violates the policy "shall be disciplined by appropriate measures, which may include suspension and expulsion." …
The challenged policy provides that an "intentional and/or persistent refusal … to respect a student's gender identity" is a violation of school board policies and subject to discipline. Parents Defending argues that the policy's requirement that a child "respect a student's gender identity" violates the First Amendment on several grounds.
We conclude that Parents Defending is likely to succeed on its claim that this portion of the policy is void for vagueness. A governmental policy is unconstitutionally vague if it fails to "provide adequate notice of the proscribed conduct" and lends "itself to arbitrary enforcement."
