He/She/They “Say Gay”: A First Amendment Framework for Regulating Classroom Speech on Gender and Sexuality

By Zachary A. Kayal

In an era of profound polarization over the nature of gender and sexuality, and children’s exposure to discussions thereof, states and school boards of all political inclinations are moving swiftly to regulate educators’ speech about such topics in public classrooms. Liberal authorities enact “pronoun policies” requiring teachers to use transgender and non-binary students’ gender-affirming names and pronouns. Conservative authorities, meanwhile, largely prohibit teachers from talking about gender and sexuality through anti-queer curriculum (or “Don’t Say Gay”) laws. Despite their opposing goals, these policies seem constitutionally indistinguishable on their face—both are regulations of educators’ classroom speech, subject to the same First Amendment standards.

This Note argues that constitutional lines can and should be drawn between these policies based on the effect of the regulated speech on third parties. Part I reviews the First Amendment standards that could apply to pronoun policies and anti-queer curriculum laws. Part II argues that these types of policies regulating educators’ classroom speech can be distinguished from one another using an egalitarian framework, which accounts for the impact of the regulated speech on students’ expression and the overall expressive environment of the classroom. Though First Amendment jurisprudence usually forecloses such arguments about third-party expressive interests, the standards governing classroom speech uniquely allow for their consideration. Part III applies that egalitarian framework to the two kinds of policies at issue. It posits that the negative effects of misgendering—chilling the protected expression of transgender students and poisoning the classroom speech environment—justify pronoun policies. But anti-queer curriculum laws regulate speech that poses no such risks, so they violate the First Amendment.

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