Courts have so far reached different conclusions about the constitutionality of these policies, potentially paving the way for a Supreme Court case.
Florida book removal, student pronoun law unconstitutional: judge
A Florida judge has ruled that a state law allowing books to be removed from public schools is overbroad and unconstitutional, saying it violates the First Amendment. In a separate ruling, the judge said a Florida law requiring teachers to use pronouns that match a student’s sex at birth constitutes discrimination and violates federal protections against employment discrimination based on sex.
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Employees in a Virginia school district are required to refer to each other with pronouns that reflect their natal gender.
The Chesapeake School Board decided in December that workers cannot be forced to violate principles by using pronouns they deem inappropriate.
The commission is one of many to pass similar regulations. In 2025 alone, a school district in Wisconsin settled a lawsuit brought by one of the teachers who was fired for not using a transgender student’s preferred pronouns, and an appeals court ruled against a school district in Ohio that implemented a policy banning offensive or derogatory language related to pronouns.
President Donald Trump’s administration is also weighing in on the issue.
In January, President Trump signed an executive order banning federally funded K-12 schools from engaging in what the order describes as “unlawful and discriminatory treatment or indoctrination in K-12 schools, including based on gender ideology.” The order’s definition of “social transition” prohibits recipients of federal funds from supporting students and includes the use of pronouns that do not match the person’s biological sex.
And at the Religious Freedom Commission’s September hearing on religious freedom in education, members heard testimony from Monica Gill, a Virginia teacher who participated in a lawsuit over a school district policy that requires teachers to use students’ preferred names and pronouns.
Whether a school’s pronoun policy is constitutional is a complex question made even more difficult by the conflicting rulings of various courts on such cases, said Alex Morley, an expert at the Freedom Forum, a nonpartisan group that advocates for the First Amendment.
But the growing number of such cases may be laying the groundwork for the nation’s highest court to consider them.
“Historically, the more the Supreme Court recognizes confusion about a law, the more likely it is to step in and provide needed clarity,” Morley said.
Government cannot force speech
While the overall issue is complex, Morley said there are certain elements of these debates that are largely settled.
For example, private schools have much more freedom to implement such policies because they are not state actors and are therefore not subject to constraints. by to First Amendment.
That’s why “the real heart of this problem” lies in public schools, she said.
“They are a nation,” she said. “The First Amendment can be brought into question whenever regulations are enacted that affect speech.”
Another well-established concept is that the government cannot compel speech.
Morley pointed to the 1943 case West Virginia Board of Education v. Barnett, in which the Supreme Court ruled that a policy requiring public school students to salute the American flag was unconstitutional.
Additionally, the Supreme Court’s famous 1969 opinion in Tinker v. Des Moines Independent Community School District stated, “It is almost uncontroversial that students and teachers waive their constitutional rights to free speech and expression at the school gates.”
“Broadly speaking, schools cannot force teachers or students to express any views they do not hold,” Morley said.
‘Watch this space,’ say experts
But other factors are more complex.
The 2006 Supreme Court case, Garcetti v. Ceballos, held that public officials can impose limits on what employees say on the job without violating the First Amendment.
Also, as established in the 1968 Pickering v. Board of Education case, off-hours speech can also be punished if it is proven that it disrupts the work or educational environment.
Morley said it’s unclear whether public school teachers’ use of certain pronouns in the classroom constitutes personal or professional speech.
The same question underlies a lawsuit brought by more than a dozen former FBI agents who were fired in 2020 for kneeling while patrolling a protest over the killing of George Floyd. Investigators maintained that their actions were not intended as political speeches, but rather were a strategic decision made to de-escalate the hostile crowd.
These factors make it difficult for educators to win in court when their free speech rights are violated.
“Teachers are actually losing in many of these cases,” Morley said.
Ultimately, when it comes to the question of whether and to what extent such policies are constitutional, “stay tuned to this area,” she said.
“No matter where you fall on the political spectrum, people want to know what they can and should say, and teachers want a fuller understanding of what their rights are in and out of the classroom, especially when it comes to this issue of pronouns,” Morley said.
Contributor: Kelly Meyerhofer
Breanna Frank is USA TODAY’s First Amendment reporter. please contact her bjfrank@usatoday.com.
USA TODAY’s coverage of First Amendment issues is funded by the Freedom Forum in collaboration with our journalism funding partners. Funders do not provide editorial input.
