Parents Defending Education v. Linn Mar Community School District

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2927
___________________________
Parents Defending Education,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Linn Mar Community School District; Shannon Bisgard, in his official capacity as
Superintendent; Brittania Morey, In their official capacity as a member of the Linn
Mar Community School District School Board; Clark Weaver, In their official
capacity as a member of the Linn Mar Community School District School Board;
Barry L. Buchholz, In their official capacity as a member of the Linn Mar
Community School District School Board; Sondra Nelson, In their official capacity
as a member of the Linn Mar Community School District School Board; Matt
Rollinger, In their official capacity as a member of the Linn Mar Community
School District School Board; Melissa Walker, In their official capacity as a
member of the Linn Mar Community School District School Board; Rachel Wall,
In their official capacity as a member of the Linn Mar Community School District
School Board,
lllllllllllllllllllllDefendants - Appellees.
------------------------------
Foundation for Moral Law; Atlantic Legal Foundation; Jewish Coalition for
Religious Liberty; Coalition for Jewish Values; American Hindu Coalition; Islam
and Religious Freedom Action Team; Institute for Faith and Family; Parental
Rights Iowa; The Justice Foundation; Wisconsin Family Action; Illinois Family
Institute; Minnesota Family Council; Delaware Family Policy Council; Hawaii
Family Forum; The Family Foundation; Ethics and Religious Liberty Commission
of the Southern Baptist Convention; Baptist Convention of Iowa; Concerned
Women For America; The Ethics & Public Policy Center; The National Legal
Foundation; Pacific Justice Institute; Liberty Justice Center; Moms for Liberty;

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Institute for Free Speech; State of Montana; State of Alabama; State of Alaska;
State of Arizona; State of Arkansas; State of Georgia; State of Idaho; State of
Kentucky; State of Louisiana; State of Mississippi; State of Nebraska; State of
Oklahoma; State of South Carolina; State of Tennessee; State of Texas; State of
Utah; State of Virginia; State of West Virginia; Advancing American Freedom;
American Cornerstone Institute; American Principles Project; American Values;
Centennial Institute at Colorado Christian University; Citizens United; Citizens
United Foundation; Committee for Justice; Common Sense Club; Dr. James
Dobson Family Institute; Eagle Forum; Faith and Freedom Coalition; Family
Research Council; Focus on the Family; National Center for Public Policy
Research; Project 21 Black Leadership Network; Sarah Perry; Tea Party Patriots
Action; The FAMiLY LEADER; Young America's Foundation,
lllllllllllllllllllllAmici on Behalf of Appellant(s),
One Iowa; Iowa Safe Schools; Lambda Legal Defense and Education Fund;
Professors of Psychology & Human Development; Interfaith Alliance of Iowa,
lllllllllllllllllllllAmici on Behalf of Appellee(s).
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: February 15, 2023
Filed: September 29, 2023
____________
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Parents Defending Education, an association of parents, brought this action to
challenge a policy adopted by the Linn Mar Community School District in Iowa.
The district court denied a motion for preliminary injunction, and Parents Defending
appeals. We dismiss the appeal in part as moot, and reverse on one claim.

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I.
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 entitled “Establishment of Gender Supports.” A
“gender support” is an accommodation for “transgender students regarding
names/pronouns, restroom and locker facilities, overnight accommodations on
school trips, and participation in activities.” The school may create a “Gender
Support Plan” at the request of a student. A Gender Support Plan is a “document
that may be used to create a shared understanding about the ways in which a
student’s gender identity will be accounted for and supported at school.”
When a student requests a Gender Support Plan, “the school will hold a
meeting with the student within 10 school days of being notified about the request.”
Under the policy, “[t]he student should agree with who is a part of the meeting,
including whether their parent/guardian will participate.” The section provides that
“[a]ny student in seventh grade or older will have priority of their support plan over
their parent/guardian.” In instances where there is not a Gender Support Plan, but a
student wants to receive support at school, “school administrators and/or school
counselors shall work with the student to identify and coordinate support.”
A second section is entitled “Confidentiality.” The policy states that
“[c]onversations between students and school counselors are protected, confidential
conversations under applicable counselor/student laws.” The District also “shall not
disclose information that may reveal a student’s transgender status to others

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including but not limited to other students, parents, and school staff unless legally
required to do so . . . or unless the student has authorized such disclosure.”
A third section 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.”
Parents Defending Education is a nationwide organization whose stated
mission is to prevent the politicization of K-12 education. The parents who seek to
participate in this case are anonymous; the pleadings identify them by a letter of the
alphabet. Parents A-G are members of the organization and have children who are
or were enrolled in school in the District.
Parents A and B have children with developmental disabilities. They claim
that these disabilities make it more likely that their children will assert gender
identities different from the sex that they were assigned at birth. Parents A and B
allegedly fear that the District will create a Gender Support Plan for their children
without parental knowledge or consent in accordance with the policy. Parent A has
since withdrawn her child from enrollment in the District to avoid this situation.
Parent C allegedly fears that her daughter will be given a Gender Support Plan
without the parent’s knowledge. Parent C bases this assumption on her daughter’s
particular life experiences, conversations she has had with her daughter, and her
daughter’s association with the LGBT community.

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Parents D-G and their children believe that biological sex is immutable, and
that people cannot “transition” from one sex to another. They claim that because the
policy requires a student to “respect” another student’s gender identity, their children
face discipline if they do not affirm beliefs with which they disagree or if they
express views that are deemed “disrespectful” by an administrator. Parents D and G
allege that their children remain silent in school environments or refrain from using
sex-specific pronouns to avoid violating the policy. Parents E and F, who are
married, fear that their child will experience mental and psychological harm if forced
to choose between expressing fundamental beliefs and conforming to the policy.
In August 2022, Parents Defending sued the District and several officials
seeking declaratory and injunctive relief. The complaint alleged that the policy, on
its face, violates the First and Fourteenth Amendments. Specifically, the complaint
asserted that the policy violates an alleged substantive due process right of Parents
A-C to direct the care, custody, and control of their children, and injures Parents D-
G by violating their children’s rights to freedom of speech.
Parents Defending moved for a preliminary injunction of the policy. The
district court determined that Parents Defending failed to establish Article III
standing because the organization did not show injury, causation, or redressability
on its claims. The court further reasoned that even if the organization could establish
standing, the claims would likely fail on the merits. After determining that other
relevant factors also weighed against a preliminary injunction, the district court
denied the motion.
II.
Parents Defending first challenges the denial of its motion for an injunction
based on a substantive due process claim that the policy violates a right of parents
to direct the care, custody, and control of their children. They complain that the
District’s policy prevents a school from notifying parents whether their child has

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been given a gender support plan or assumed a transgender status. We conclude that
intervening legislation enacted in Iowa provides Parents Defending with all of the
relief requested on this claim. The appeal regarding this claim is therefore moot.
After this appeal was submitted, the Iowa legislature passed Senate File 496,
and the governor signed it into law. The law became effective on July 1, 2023. See
Iowa Code § 279.78 (2023). This new statute prohibits a school district from
knowingly giving “false or misleading information to the parent or guardian of a
student regarding the student’s gender identity or intention to transition to a gender
that is different than the sex listed on the student’s official birth certificate.” Id.
§ 279.78(2). If a student requests a gender accommodation that is “intended to
affirm the student’s gender identity from a licensed practitioner employed by the
school district,” then the “licensed practitioner shall report the student’s request to
an administrator employed by the school district, and the administrator shall report
the student’s request to the student’s parent or guardian.” Id. § 279.78(3). A
licensed practitioner is “an administrator, teacher, or other licensed professional . . .
who provides educational assistance to students.” Id. § 272.1.
The new Iowa statute provides Parents A-C all of their requested relief. The
District may not knowingly give false information to a parent about a student’s
gender identity, and must notify a parent of a student’s request for a gender
accommodation from a licensed practitioner. An appeal is moot where changed
circumstances have provided the requested relief. Teague v. Cooper, 720 F.3d 973,
976 (8th Cir. 2013). “A statutory change that discontinues a challenged practice
usually makes an appeal moot.” Roth v. Austin, 62 F.4th 1114, 1119 (8th Cir. 2023).
In a post-enactment submission, Parents Defending argues that the new statute
does not render their substantive due process claim moot. They suggest that
although the statute forbids a school to give parents “false or misleading
information” about a student’s gender identity, the challenged policy allows the
District to withhold information entirely. The statute, however, also requires a

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school administrator to notify a parent when a child requests a gender
accommodation from a licensed practitioner employed by the school district. Iowa
Code § 279.78(3). The statute thus forbids a school district to withhold the
information entirely.
Parents Defending also suggests that the claim is not moot because the law
requires only “licensed practitioners,” not other school employees, to report a
student’s request for gender accommodation. School administrators, teachers, and
counselors, however, are “licensed practitioners” under Iowa law. See Iowa Code
§ 272.1; Iowa Admin. Code R. 281-12.3(11), 282-27.1(1). The challenged policy
on gender support plans applies to a request by a student to meet with “school
administrators and/or school counselors” to receive support. Even if a student
requests a gender accommodation from another school employee, and there is no
gender support plan, the challenged policy dictates that “school administrators
and/or school counselors shall work with the student to identify and coordinate
support.” The Iowa statute thus requires a report to a parent when a student requests
gender support under the challenged policy.
The enactment of Senate File 496 provides Parents Defending with its
requested relief on its substantive due process claim. We therefore dismiss this
portion of the appeal as moot, and we need not address whether the organization has
standing to seek relief on this claim. See Ness v. City of Bloomington, 11 F.4th 914,
920 (8th Cir. 2021). Cf. Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622,
631 (4th Cir. 2023).
III.
A.
Parents Defending next challenges the district court’s ruling on its claim under
the First Amendment. Parents Defending maintains that Parents D-G are injured

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because the policy violates their children’s rights to freedom of speech. Parents have
standing to sue when the practices and policies of a school threaten the rights and
interests of their minor children. See, e.g., Parents Involved in Cmty. Schs. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701, 718-19 (2007); Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 224 n.9 (1963).
A plaintiff claiming an abridgment of the right to free speech has standing to
seek pre-enforcement review of a policy “under circumstances that render the
threatened enforcement sufficiently imminent.” Susan B. Anthony List v. Driehaus,
573 U.S. 149, 159 (2014). A plaintiff satisfies the injury-in-fact requirement where
he alleges “an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat
of prosecution thereunder.” Id. (internal quotation omitted).
Parents Defending argues that the students’ speech has been chilled by the
prospect of the policy’s enforcement. Under the policy, “[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.” A student who fails to comply with the provision
“shall be disciplined by appropriate measures, which may include suspension and
expulsion.” Parents Defending claims that the children of Parents D-G wish to
express certain opinions about biological sex and gender identity at school, but fear
that their speech may be considered “disrespectful” of another student’s gender
identity, and thus met with discipline.
We conclude that at least Parent G has alleged an injury in fact sufficient to
confer Article III standing. Parent G asserts that her son wants to “state his belief
that biological sex is immutable,” “disagree[] with another student’s assertion about
whether they are male or female,” “stat[e] that a biological male who identifies as
female should not be allowed to compete in women’s sports,” and “express[]
discomfort about sharing bathrooms with teachers or students of the opposite
biological sex.” Because of the policy, however, Parent G states that her son remains

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silent in school “when gender identity topics arise” to avoid violating the policy.
This student’s proposed activity “concerns political speech” and is “arguably
affected with a constitutional interest.” Susan B. Anthony List, 573 U.S. at 161-62.
The District argues that the suggested activity is not “affected with a
constitutional interest,” because harassment or bullying on the basis of gender is not
protected speech within the school environment. Although it is true that schools
have an interest in regulating speech that involves an “invasion of the rights of
others,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969), it
is “certainly not enough that the speech is merely offensive to some listener.” Saxe
v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001). A school district
cannot avoid the strictures of the First Amendment simply by defining certain speech
as “bullying” or “harassment.” Parent G alleges that her child wishes to engage in
an “open exchange of ideas” and to express beliefs that others might find
disagreeable or offensive. The proposed speech is “arguably affected with a
constitutional interest.” Susan B. Anthony List, 573 U.S. at 161-62 (internal
quotation omitted).
Second, the conduct in which Parent G’s child intends to engage is arguably
proscribed by the policy. The policy broadly prohibits a refusal to “respect a
student’s gender identity.” The policy does not define “respect,” and the expression
of opinions like those held by Parent G’s child arguably would violate the policy.
The District contends that the policy concerns only the use of a student’s preferred
name or pronouns, and does not restrict the expression of “general opinions” about
gender identity. The text of the policy, however, does not limit the prohibition to a
refusal to use a student’s preferred name or pronoun. We thus conclude that the
proposed activity is arguably proscribed by the policy.

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Third, there is a credible threat of enforcement. When a course of action is
within the plain text of a policy, a “credible threat” of enforcement exists. Alexis
Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774, 778 (8th Cir. 2019). The text of
the policy here provides that a student who violates the policy “shall be disciplined
by appropriate measures, which may include suspension and expulsion.” The policy
was enacted only recently in 2022, and there is thus no established practice of non-
enforcement that could assuage concerns about the imposition of discipline. See St.
Paul Area Chamber of Com. v. Gaertner, 439 F.3d 481, 486 (8th Cir. 2006).
Finally, the alleged injury is fairly traceable to potential enforcement of the
policy by the District, and a favorable decision will likely redress the injury. See
Rodgers v. Bryant, 942 F.3d 451, 455 (8th Cir. 2019). The District argues that the
injury is not redressable because Iowa law and the policy prohibit similar conduct.
Iowa law prohibits “harassment” and “bullying” in schools, see Iowa Code § 280.28,
and prevents schools from establishing practices that discriminate on the basis of
“gender identity,” see Iowa Code § 216.9(1). But the policy’s requirements
allegedly go beyond existing law to encompass a refusal to “respect a student’s
gender identity.” An order granting relief would redress an injury caused
independently by the policy.
For these reasons, Parent G has standing to bring a claim challenging the
policy based on the First Amendment. Therefore, Parents Defending has standing
as an association to pursue the claim on behalf of a member. See Int’l Union, United
Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 282
(1986).
B.
On the merits of the order denying a preliminary injunction, we consider the
threat of irreparable harm to the movant, the likelihood that the movant will succeed
on the merits, the balance between the harm to the movant and injury that an

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injunction would inflict on other parties, and the public interest. Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). When a plaintiff
demonstrates a likelihood of success on the merits of a First Amendment challenge,
the other preliminary injunction factors are “generally deemed to have been
satisfied.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870
(8th Cir. 2012) (en banc) (internal quotation omitted). We review the district court’s
order for abuse of discretion, with factual findings examined for clear error, and legal
conclusions considered de novo. Comprehensive Health of Planned Parenthood
Great Plains v. Hawley, 903 F.3d 750, 754 (8th Cir. 2018).
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.” United States v. Barraza, 576
F.3d 798, 806 (8th Cir. 2009).
School disciplinary rules need not be as detailed as a criminal code that
imposes criminal sanctions. Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d
1303, 1308-09 (8th Cir. 1997). But when a school policy reaches speech protected
by the First Amendment, the vagueness doctrine “demands a greater degree of
specificity than in other contexts.” Id. (internal quotation omitted). As such, “while
a lesser standard of scrutiny is appropriate because of the public school setting, a
proportionately greater level of scrutiny is required because the regulation reaches
the exercise of free speech.” Id.

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The District’s policy does not provide adequate notice of what conduct is
prohibited, because it fails to define the term “respect.” As the district court
acknowledged, “respect” has various meanings. Because the policy does not define
or limit the term, it could cover any speech about gender identity that a school
administrator deems “disrespectful” of another student’s gender identity. A student
thus cannot know whether he is violating the policy when he expresses discomfort
about sharing a bathroom with someone who is transgender, argues that biological
sex is immutable during a debate in social studies class, or expresses an opinion
about the participation of transgender students on single-sex athletic teams.
The District asserts that “respect” requires only the use of a student’s preferred
name and pronouns, and does not prohibit “general opinions” about gender identity.
The district court concluded that the policy “appears” to be so limited, because the
paragraph regarding refusal to “respect a student’s gender identity” is set forth at the
end of a section headed “Names and Pronouns.”
We are not convinced that a student may rest assured that the policy is as
narrow as the District asserts in litigation. Even assuming for the sake of analysis
that the District could dictate a student’s use of names and pronouns, the plain
meaning of the policy is not so limited. The policy threatens discipline for a refusal
to “respect a student’s gender identity,” not for a refusal to respect a student’s
preferred name or pronoun. The term “gender identity” is defined as “[a] person’s
deeply-held sense or psychological knowledge of their own gender”—a capacious
concept that likely goes well beyond a name and a pronoun. That a defined term is
used under a section heading does not change the meaning of the defined term.
The lack of clarity also makes the policy susceptible to arbitrary enforcement.
The undefined term “respect” leaves the policy open to unpredictable interpretations,
and creates a substantial risk that school administrators may arbitrarily enforce the
policy. Without meaningful guidance, District officials are left to determine on an
“ad hoc and subjective basis” what speech is “disrespectful” and subject to

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discipline, and what speech is acceptable. See Grayned v. City of Rockford, 408 U.S.
104, 109 (1972).
For these reasons, we conclude that Parents Defending is likely to succeed on
the merits of its First Amendment challenge to a portion of the policy, and that the
other preliminary injunction factors are satisfied as to that claim. See Minn. Citizens
Concerned for Life, 692 F.3d at 870. The portion of the appeal concerning an alleged
violation of substantive due process rights is dismissed as moot. The district court’s
orders of September 12 and September 20, 2022, are vacated. Due to the vagueness
of the policy, the case is remanded with directions to grant a preliminary injunction
against enforcement of the portion of the policy prohibiting an intentional or
persistent refusal “to respect a student’s gender identity.”
KELLY, Circuit Judge, concurring.
I agree that schools are limited in their ability to regulate speech that is
“merely offensive to some listener.” See Saxe v. State Coll. Area Sch. Dist., 240 F.3d
200, 217 (3d Cir. 2001) (Alito, J.); see also Wildman ex rel. Wildman v.
Marshalltown Sch. Dist., 249 F.3d 768, 771 (8th Cir. 2001) (noting it is within
“school officials’ authority to prohibit the public expression of vulgar and offensive
comments and to teach civility and sensitivity in the expression of opinions.” (citing
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986))). However, I write
separately because the gravamen of this case is not the regulation of speech that is
merely disagreeable or offensive to some listener. What is before the court are Linn-
Mar Community School District’s efforts to abide by the requirements imposed on
it by federal and state law.

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Title IX bars sex-based discrimination in public schools.1 See Religious
Sisters of Mercy v. Becerra, 55 F.4th 583, 588 (8th Cir. 2022) (citing Portz v. St.
Cloud St. Univ., 16 F.4th 577, 580 (8th Cir. 2021)). Title IX “unquestionably” places
on school boards “the duty not to permit teacher-student harassment in [their]
schools, and recipients [of federal funds] violate Title IX’s plain terms when they
remain deliberately indifferent to this form of misconduct.” Davis ex. rel. LaShonda
D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (cleaned up) (quoting
Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992)). Deliberate
indifference to known acts of harassment can also “amount[] to an intentional
violation of Title IX . . . when the harasser is a student rather than a teacher.” Id.
As part of their bar on sex-based discrimination, federal anti-discrimination
statutes prohibit discrimination on the basis of gender identity. See Horton v.
Midwest Geriatric Mgmt., LLC, 963 F.3d 844, 847 (8th Cir. 2020) (“[T]he
[Supreme] Court held that it ‘defies’ Title VII for ‘an employer to discriminate
against employees for being homosexual or transgender,’ because to do so, it ‘must
intentionally discriminate against individual men and women in part because of
sex.’” (quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1743, 1754 (2020)).
Courts have found that this includes Title IX. See Grimm v. Gloucester Cnty. Sch.
Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020) (“Although
Bostock interprets Title VII . . . it guides our evaluation of claims under Title IX”).
Federal agencies similarly interpret Title IX to bar discrimination on the basis of
gender identity. See Notification of Interpretation and Enforcement of Section 1557
of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86
Fed. Reg. 27984-02 (Dep’t of Health & Hum. Servs. May 25, 2021) (to be codified
1 As six other circuits have held, sexual harassment in schools can also violate
the Constitution’s Equal Protection Clause, as can an administrator’s ratification of
such conduct. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir.
2018) (citing T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010), and listing cases
reaching this conclusion from the Sixth, Seventh, Ninth, Tenth, and Eleventh
Circuits).

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at 45 C.F.R. pts. 86, 92) (“[T]he Civil Rights Division of the U.S. Department of
Justice . . . conclud[ed] that the Supreme Court’s reasoning in Bostock applies to
Title IX.”); Memorandum on Application of Bostock v. Clayton County to Title IX
of the Education Amendments of 1972 from Principal Deputy Assistant Att’y Gen.,
Pamela S. Karlan, U.S. Dep’t of Just., Civ. Rts. Div., to Fed. Agency Civ. Rts. Dirs.
and Gen. Counsels (Mar. 26, 2021),
https://www.justice.gov/crt/page/file/1383026/download.
The Iowa Civil Rights Act is even more explicit in prohibiting discrimination
on the basis of gender identity. Iowa Code § 216.9 (2008) (“It is an unfair or
discriminatory practice for any educational institution to discriminate on the basis of
. . . sex, sexual orientation, [or] gender identity, . . . in any program or activity.”).
Relevant here, Iowa law additionally bars school employees, volunteers, and
students in Iowa schools from engaging in harassing or bullying behavior. Iowa
Code § 280.28 (2007). This law is based on the General Assembly’s finding, codified
within Iowa’s anti-bullying statute, “that a safe and civil school environment is
necessary for students to learn and achieve at high academic levels. Harassing and
bullying behavior can seriously disrupt the ability of school employees to maintain
a safe and civil environment, and the ability of students to learn and succeed.” Id.
§ 280.28(1). The statute defines “harassment” and “bullying” “to mean any
electronic, written, verbal, or physical act or conduct toward a student which is based
on any actual or perceived trait or characteristic of the student and which creates an
objectively hostile school environment that meets one or more of [several]
conditions.” Id. § 280.28(2)(b).2 The statute lists “gender identity” as a “trait or
characteristic of the student.” Id. § 280.28(2)(c).
2 These conditions are:
(1) Places the student in reasonable fear of harm to the student’s person or
property.
(2) Has a substantially detrimental effect on the student’s physical or mental
health.

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In sum, Linn-Mar Community School District has a duty, under federal and
state law, to protect students from harassment and discrimination on the basis of sex.
Under federal law this duty extends to protecting students from harassment or
discrimination on the basis of gender identity. Iowa law explicitly imposes a duty to
protect students from discrimination on the basis of gender identity. The District also
has a duty, under Iowa law, to protect students from bullying, and this duty extends
to protecting students from harassment and bullying on the basis of gender identity.
One step the District has taken to meet its responsibilities under both federal
and state law is to adopt Board Policies 103.1 and 103.1-R, which are anti-bullying
and anti-harassment policies and regulations. Board Policy 103.1 was adopted by
the District in 2007, and it bans “repeated or potentially repeated acts” or “ongoing
conduct toward an individual based on any trait or characteristic of the individual
which creates an objectively hostile school environment that,” for example, “[h]as a
substantial detrimental effect on the individual’s physical or mental health.” See
Board Policy 103.1. This Policy explicitly includes “gender identity” as a “trait or
characteristic,” and thus explicitly bans bullying and harassment on the basis of
gender identity. Id.
The District was also responding to legislative mandates when it promulgated
Board Policies 504.13 and 504.13-R. The Superintendent of the District explained
that “[i]n order to meet the District’s obligations under federal and state law . . . the
District has provided . . . support and accommodations relating to gender identity.”
And Board Policies 504.13 and 504.13-R clarify and refine how to protect students
from bullying, harassment, and discrimination on the basis of their gender identity.
For example, in the portion now challenged on First Amendment grounds, Board
(3) Has the effect of substantially interfering with a student’s academic
performance.
(4) Has the effect of substantially interfering with the student’s ability to
participate in or benefit from the services, activities, or privileges provided by
a school.
Id. § 280.28(2)(b)(1)–(4).

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Policy 504.13-R recognizes the right of “every student” “to be addressed by a name
and pronoun that corresponds to their gender identity.” And, against the backdrop of
the Iowa Civil Rights Act and Title IX, it reiterates that no student shall be denied
equal access to education or school activities on the basis of their gender identity. It
also lays out steps that schools and administrators must follow to secure equal rights
for all District students, including the prohibition against discrimination by way of
repeated or intentional misgendering.
Nevertheless, I concur in the outcome of this case. The constitutional problem
with Board Policy 504.13-R is that it proscribes acts or conduct that intentionally or
persistently do not “respect a student’s gender identity,”3 and fails to provide
meaningful guidance as to what falls within the scope of the word “respect.” In doing
so, Board Policy 504.13-R is likely too vague about what speech it proscribes,
making it potentially susceptible to arbitrary enforcement.
But it is important to note that the problem with Board Policy 504.13-R is not
that it seeks to regulate opinions about issues related to gender identity or “merely
offensive” speech. It does not. Rather, Board Policy 504.13-R seeks to “ensure a
safe, affirming, and healthy school environment” where every student, including
those of all gender identities, “can learn effectively.” The District may have used
language that is insufficiently tailored to its effort to achieve this goal. But the goal
itself is not only appropriately inclusive and well within the scope of the District’s
educational mission. See, e.g., Doe by & through Doe v. Boyertown Area Sch. Dist.,
897 F.3d 518, 528 (3d Cir. 2018) cert. denied sub nom. Doe v. Boyertown Area Sch.
3 That said, the policy could not cover any speech about gender identity that a
school administrator deems “disrespectful” of a student’s gender identity. For
example, a student would know they are not automatically violating the policy when
expressing discomfort about sharing a bathroom with someone who is transgender
because the policy expressly invites such objections. Board Policy 504.13-R (“any
student who is uncomfortable using a shared facility regardless of the reason shall,
upon the student’s and/or a parent/guardian request, be provided with a safe and
non-stigmatizing alternative.” (emphasis added)).

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Dist., 139 S. Ct. 2636 (2019) (“When transgender students face discrimination in
schools, the risk to their wellbeing cannot be overstated—indeed, it can be life
threatening.”); Iowa Code § 280.28(2)(b)(2) (banning harassment and bullying that
creates an objectively hostile school environment that has a substantially detrimental
effect on the student’s physical or mental health). It is mandated by law.
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