“The battle of the pronouns is a matter of serious political and social concern.” Thus, Judges Amul Thapar and John Nalbandian, near the start of their concurring opinion in Defending Education v. Olentangy Local School District Board of Education, et al., for which the Sixth Circuit issued a preliminary injunction in favor of the plaintiffs in a closely watched en banc decision (10–7) issued on November 6. They are right, and if anyone in 2025 still imagines that pronominal use is not a matter of serious legal concern as well, this case certainly puts that doubt to rest.
At issue in Defending Education is whether Ohio’s fourth-largest school district could discipline students for purposefully using what are sometimes known as “biological pronouns” rather than what are sometimes known as “preferred pronouns” when referring to transgender or nonbinary classmates. The majority, relying heavily on the First Amendment, held that the district could not do this.
There has been no shortage of cases about pronouns, the most famous of which is Meriwether v. Hartop, et al. This pitted the Ohio philosophy professor Nicholas Meriwether against his employer, Shawnee State University, which had disciplined him for refusing to use the pronouns “she/her/hers” for a biologically male student known in the court documents as Jane Doe. In 2021, the Sixth Circuit (again) ruled for Meriwether, who received a favorable settlement the following year.
Judge Thapar’s 32-page opinion in Meriwether makes for excellent reading. But I have rarely read a legal document as gripping as Defending Education. In addition to the majority opinion of Judge Eric Murphy and the dissent of Judge Jane Stranch, the 112 pages comprise no fewer than four concurring opinions by five of the nine colleagues who joined Murphy: Judges Alice Batchelder, John Bush, Raymond Kethledge, and (as already noted) Thapar and Nalbandian together. Unsurprisingly, all six opinions—five that come out for the plaintiffs, one for the defendants—cite Meriwether. Also unsurprisingly, sadly, is that the judges voted in blocks: all ten judges appointed by Republican presidents (six by Donald Trump, three by George W. Bush, and one by George H. W. Bush) sided with the plaintiffs, all seven judges appointed by Democratic presidents (four by Joe Biden, two by Bill Clinton, and one by Barack Obama) sided with the defendants.
Both the majority opinion and the dissent in Defending Education rely heavily on the Tinker test, so called after the 1969 Supreme Court case that ruled that the Des Moines, Iowa, public schools had wrongfully suspended three students who wore black armbands to school in protest of the Vietnam War. To quote the famous pronouncement of Justice Abe Fortas, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In brief, Judge Murphy suggests that the Olentangy district “has fallen far short of meeting th[e] demanding [Tinker] standard,” having “introduced no evidence that the use of biological pronouns would disrupt school functions of quality as harassment under Ohio law.” By contrast, Judge Stranch—who wrote the majority opinion in the 2024 Sixth Circuit ruling (2–1) that the en banc decision reverses—argues that the district “has met its burden under Tinker to reasonably forecast that the speech requested by Defending Education will,” in the words of the 1969 decision, “materially and substantially disrupt the work and discipline of the school.”
Why would anyone believe it appropriate for the government—and private employers, too, for that matter—to attempt to regulate how people use pronouns when the issues these little words raise did not exist a generation ago and are evidently highly contested?
To my mind, Judge Murphy’s opinion has many high points. But what makes the decision truly fascinating—and will substantially affect legal agendas in the years to come—is not the majority opinion as such, or the dissent, but the range of concurrences, all of which worry to greater and lesser degrees about the dependence on Tinker.
Here are two fundamental questions that go well beyond Tinker. First, what is it precisely that makes it wrong—or right—to compel students to refer to biological females as “he,” biological males as “she,” and/or any specific person as “they,” “ze,” or something else altogether? And second, more broadly, how will this latest ruling affect future attempts to compel adults, both in public schools and in every conceivable other environment, to use words that are among our language’s building blocks?
These questions, which nearly everyone would have regarded with incomprehension only two decades ago, have become seemingly unavoidable. As I point out in a survey of recent books about pronouns for young children, eighteen of the one hundred most-used “word forms” in American English are personal pronouns or pronominal adjectives, ten of them third-person forms. It is true that Judge Stranch wrote her “entire dissent … without using gendered third person pronouns to refer to individuals.” (In 2022, the conservative judge Barbara Lagoa of the Eleventh Circuit tried something similar in another case involving someone who is transgender.) But this is a language game that requires extraordinary attention to pull off and, furthermore, almost always results in something that sounds peculiar in places. As the majority opinion puts it,
in ordinary conversations (especially conversations between young students), it would be all but “impossible” to train oneself not to use pronouns when referring to others. … Students do not use this speech to belittle others; they use it because there is no practical alternative short of expressing a viewpoint with which they might fundamentally disagree.
Now, it is understandable that reasonable people will sometimes disagree about the applicability of the Tinker test to a specific matter. And in the case of Defending Education, although I believe the decision to be correct, I am sympathetic to the firmly worded assessment of Judge Batchelder, in her concurrence, that, pace the focus of the majority opinion, “Tinker has no role in a viewpoint-discrimination or compelled-speech analysis.” Be that as it may, what is much harder to understand is why would anyone believe it appropriate for the government—and private employers, too, for that matter—to attempt to regulate how people use pronouns when the issues these little words raise all but did not exist a generation ago and are evidently highly contested?
There are, of course, plenty of other highly contested and legally challenging things that were not widespread until a generation ago: the Internet, for example. But there is a vast gulf between a technological innovation and the basic linguistic expression, throughout the history of English, of what most people under most circumstances—very much including young children at school—have considered an immutable fact about biology.
And so, it will become increasingly interesting to watch how judges grapple with pronouns in the context of First Amendment rights. Will they continue to hold, with the majority opinion in Defending Education, that requiring a person to use or not use certain pronouns violates the Free Speech Clause? Will they affirm the importance of not engaging in viewpoint discrimination, an idea stressed here most powerfully in the concurrences of Judge Batchelder and Judges Thapar and Nalbandian? And when pronominal edicts conflict with sincerely held religious beliefs, what role will the Free Exercise Clause play? (It was part of the decision in Meriwether and could have played a larger role in Defending Education, which arose out of an email from a parent of a “devoutly Christian child”: see the amicus brief filed by a coalition of Jewish, Hindu, and Muslim groups.)
Or will it prove necessary to invoke historic common law, as Judge Kethledge does in his concurrence? “Not at all convinced that contemporary free-speech doctrine affords us a clear basis to decide cases like this one by the application of legal rules,” Judge Kethledge concludes that Olentangy students almost certainly “retain their right, under the historic common law, to use the pronouns they honestly think they should use.”
Then there is the lengthy concurrence of Judge Bush, written with verve in quite a different spirit. As a linguist who has written a great deal about pronouns, including about pronouns and the law, I am especially interested in what Judge Bush has to say about language, beginning with his opening paragraph, which I quote in full:
This case is about a government attempt to alter traditional grammar. If the issue seems odd, that’s because it is. Unlike languages in many countries, American English develops through custom, not law. True, we have “rules” of grammar. But they are rules only because we follow them until they change through voluntary, widespread decisions of individuals and groups. This change occurs through persuasion, not government mandate.
The first thing to say about this is that Judge Bush gets something wrong: no language develops through law rather than custom. He goes on to report that “governments around the world use the force of law to regulate language,” citing governmental committees and academies in China, France, Canada, and Belgium, and writes that “English is the notable exception. Governments in English-speaking countries have traditionally done nothing, nada, zilch, to regulate English common usage.” But official language-enforcing units like the Académie Française invariably exist as defensive, and generally futile, mechanisms against change—often inexorable change that isn’t so much voluntary as unconscious—rather than as anticipatorily offensive authorities.
Still, Judge Bush is only a bit hyperbolic when he calls the “tactics” of “the newly emergent pronoun regulators … a power play entirely without precedent in American history.” (The level of hyperbole depends, I think, on whether one views the semantic expansion of a word like “he” to include biological women to be a deep matter of grammar or simply a lexical change, albeit an especially consequential one, not unlike what the 2020 Supreme Court decision in Bostock v. Clayton County, Georgia arguably did to the meaning of “sex.”) He is right, I believe, that “if schools may prohibit common, historically acceptable pronoun usage by simply relabeling it ‘bullying,’ then they may prohibit virtually any speech.” And more generally, a “government simply cannot regulate grammar—full stop.”
The most moving line in the decision is Judge Kethledge’s “final point,” which he calls “hortatory rather than legal” and which Judge Stranch picks up with “full agreement” in her dissent: just because one has the legal right to say something doesn’t mean that one ought to do so. “Perhaps,” Judge Kethledge suggests, students “can … forbear from making an example of the eighth grader sitting next to them—if not as a matter of law, then of grace.” No one should be forced to refer to a boy who thinks he’s a girl as “she,” but if it does not deeply offend one’s sensibilities to do this—I recognize that this is a big “if”—then I, for one, counsel good will and, to take one of my favorite words, Judge Kethledge’s grace. And if indeed the “decline of trans and queer identity among young Americans” that Eric Kaufmann and others have observed continues, then maybe the battles of the pronouns, which came about so quickly, will cease sooner than their current prominence might suggest.