Pronoun/Gender Wars Continue Apace

[SeekingUnderstanding]

6 minutes ago, smac97 said:

I was speaking in the legal sense.  If someone legally changes their name from "John" to "Mary," then that becomes his legal ("actual") name.  Otherwise, the name has just been made up by the individual.

So if a person doesn’t have a legal name, that individual doesn’t have an actual name? If my parents home birthed and didn’t register me with the state would I have an actual name? Just a fabricated one to use your language?

Edited yesterday at 05:04 PM by SeekingUnderstanding

[smac97]

7 minutes ago, The Nehor said:

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I think the State and its extensions should not regulate speech as to either "preferred pronouns" or "deadnaming."

So are you consistent on this?

I think so.

7 minutes ago, The Nehor said:

If someone decides to take their spouse’s last name and someone has a ‘moral’ objection to that practice and deadnames with their old name out of malice that should not result in any kind of discipline?

Discipline from the State?  No.  None.  At all.

Private parties generally lack authority to mete out "discipline."

7 minutes ago, The Nehor said:

If someone legally changes their name and someone chooses to use the old name out of malice that shouldn’t be a discipline thing?

No.  None.  At all.

7 minutes ago, The Nehor said:

Are you philosophically consistent on this point

I think so, yes.

7 minutes ago, The Nehor said:

or do transphobes just get a special carve-out where they are allowed to be jerks?

"{A}llowed to be jerks" seems to presuppose that the State is doing the allowing or disallowing.

Are there segments of society, outside of the "trans" community, that is seeking - with some success - to use the coercive and punitive power of the State to compel others to speak certain words (e.g., pronouns, former names, etc.) or be punished for failing/refusing to?  I can't think of any offhand, but I am open to any input on this point.

The State and its extensions should not regulate speech as to either "preferred pronouns" or "deadnaming."  Doing so is inimical to the First Amendment.  

Thanks,

-Smac

[smac97]

27 minutes ago, SeekingUnderstanding said:

Quote

I was speaking in the legal sense.  If someone legally changes their name from "John" to "Mary," then that becomes his legal ("actual") name.  Otherwise, the name has just been made up by the individual.

So if a person doesn’t have a legal name, that individual doesn’t have an actual name?

Legally?  No.  But since everyone does have a legal name these days...

27 minutes ago, SeekingUnderstanding said:

If my parents home birthed and didn’t register me with the state would I have an actual name? Just a fabricated one to use your language?

Again, I was speaking in a legal sense.  "Actual" = "legally recognized."  "Fabricated" = "not legally recognized."

Thanks,

-Smac

[SeekingUnderstanding]

10 minutes ago, smac97 said:

Legally?  No.  But since everyone does have a legal name these days...

Again, I was speaking in a legal sense.  "Actual" = "legally recognized."  "Fabricated" = "not legally recognized."

Thanks,

-Smac

Ok so "fabricated" was used as a term of legal art, not a transphobic Freudian slip. 

[SeekingUnderstanding]

2 hours ago, smac97 said:

Not quite.

First, your scenario is not about the State punishing speech, not compelling it.

Yes. We are talking about the state punishing the use of a deadname. The specific context using the links you provided were for punishing harassment of one student by another. Following your links, among other things, using a deadname as a form of harassing could lead to punishment. You strongly object to this on first amendment grounds stating "I think the State and its extensions should not regulate speech as to ... 'deadnaming.'"

2 hours ago, smac97 said:

Second, that the legalities play out as they do does not mean I endorse "deadnaming." 

I never said you did. 

2 hours ago, smac97 said:

Third, abstaining from "deadnaming" should, I think, be a matter of personal choice, and not a matter for compulsion or punishment by the State.

Fourth, the courts have allowed some constraints student student during school hours on school property.  That's a fairly narrow circumstance relative to "Speech" overall and in other circumstances.

None the less this is exactly the scenario linked to in your post. Your concern is specifically about Universities regulating harassment on campus. I followed your links and read some of the harassment policies. There are quite a few limits in there on speech when it comes to religion, race, sex, national origin, etc.

2 hours ago, smac97 said:

Fifth, I do see some distinctions, both ethically and legally, between preferred pronouns/deadnaming and your scenario.  A person can have a legitimate and good faith and non-harassing basis for declining to use preferred pronouns, or for declining to use a person's fabricated name rather than their actual one.  Preferred pronouns and using someone's fabricated name (instead of the "dead" name) are, if required, compelled speech, whereas using someone's temple name is not.  The Tinker test would, I think, put targeted religious harassment within the category of speech which a school can regulate, but I am less persuaded that the test would put preferred pronouns or "dead names" there.  

Who exactly is compelling speech? Banning the use of someone's temple name is not compelled speech. Banning the use of someone's deadname is not compelled speech. In what way can that be construed as compelled speech? Do we have different definitions of compelled speech?

2 hours ago, smac97 said:

"Deadnaming" is slightly different, as if a person legally changes his name, then I think there is less justification to use his/her former name.  But even then, I object to the State compelling use of the new name or punishing use of the old one (subject to narrow exceptions, such as for student speech during school hours on school property).

Isn't that exactly the context you linked to? Students attending university using a deadname to harrass a classmate? Because that's what you linked to.

2 hours ago, smac97 said:

Ninth, if there were some effort by the State to compel you to refer to Joseph Smith as "the Lord's prophet," or if it were to punish you for speaking critically of him, I think you would object to that.  

I'm still not seeing how banning a deadname on campus is akin to a faith affirmation. We are in agreement that if someone got up in a classroom and said "F*** the Mormons", that's not protected speech right? But for some reason you think a student using a deadname as harassment is protected speech on campus?

 

Edited yesterday at 06:22 PM by SeekingUnderstanding

[smac97]

21 minutes ago, SeekingUnderstanding said:

Ok so "fabricated" was used as a term of legal art, not a transphobic Freudian slip. 

I thought "Madonna" was a stage ("fabricated") name, but it turns out her legal name is "Madonna Louise Ciccone."

On the other hand, the person who plays "Maui" in Moana has a legal name (Dwayne Johnson) and a fabricated one ("The Rock").  I know a young woman who "identifies" as male.  Her legal name is Rebecca, but she now goes by a fabricated (that is, not legally recognized) name of "Kee."  Several in the cast of Jersey Shore had fabricated names ("Snooki," "The Situation," "Sweetheart," "JWoww").  And so on.  

Trans folks are not the only ones who adopt fabricated (not legally recognized) names.

Thanks,

-Smac

[longview]

19 hours ago, The Nehor said:

On 8/15/2026 at 9:21 AM, longview said:

I'm sure you think Fauci is a beautiful human being. It was proper for him to fund "gain of function" lab work in Wuhan, red china. </sarcasm>

"at all" ? Why the absolutes?

Soviet-style Whataboutism.

Keep it up Comrade.

Can you give me an example of "Soviet-style Whataboutism" ? Would that be their tactic of foisting constant war of words and Tturning victim classes against each other? Check your copy of Saul Alinsky's book: "Rules for Radicals".

Comrade? I am not some ant-hill communist drone. You know me to be a rock-ribbed constitutional conservative. I prefer the appellation of brother or patriot.

19 hours ago, The Nehor said:

On 8/24/2026 at 9:04 AM, longview said:

should society stoop to accommodate the "insanity" of woke social engineers?

Expand  

Why did you put that in quotes? Are you suggesting it is not actually insanity?

Based.

The constant barrage of subversion is massive and pervasive. We could use multiple descriptors for identifying the various programs being orchestrated by the many woke social engineers:

• bodily mutilations of minors (depraved, viscious)
• claims of men being "able" to conceive, give birth and lactate milk (what planet are you on ? ? ?)
• claims of women being "able" to do anything that men do including going into combat (unwise)
• etc etc etc

[smac97]

30 minutes ago, SeekingUnderstanding said:

Yes. We are talking about the state punishing the use of a deadname.

And the State punishing speech is somewhat different from compelling it.

30 minutes ago, SeekingUnderstanding said:

The specific context using the links you provided were for punishing harassment of one student by another.

Yes.  Student A referring to Student B by his legal name ought not be punished by the State, even if Student B considers that "deadnaming."

Should Student B legally changes his name away from his former legal name (his "deadname"), should the State punish Student A for using that former legal name?  Frankly, I think that would need to be sort of a case-by-case thing, as the Tinker test is broad.

30 minutes ago, SeekingUnderstanding said:

Following your links, among other things, using a deadname as a form of harassing could lead to punishment.

Theoretically, yes.  

30 minutes ago, SeekingUnderstanding said:

You strongly object to this on first amendment grounds stating "I think the State and its extensions should not regulate speech as to ... 'deadnaming.'"

Broadly, yes.  I do acknowledge, however, that that schools have the right to regulate speech of students during school hours and on school property.  This is a fairly narrow exception to the general rule.

30 minutes ago, SeekingUnderstanding said:

Quote

Second, that the legalities play out as they do does not mean I endorse "deadnaming." 

I never said you did. 

I am glad we cleared that up.

30 minutes ago, SeekingUnderstanding said:

Quote

Third, abstaining from "deadnaming" should, I think, be a matter of personal choice, and not a matter for compulsion or punishment by the State.

Fourth, the courts have allowed some constraints student student during school hours on school property.  That's a fairly narrow circumstance relative to "Speech" overall and in other circumstances.

None the less this is exactly the scenario linked to in your post. Your concern is specifically about Universities regulating harassment on campus. I followed your links and read some of the harassment policies. There are quite a few limits in there on speech when it comes to religion, race, sex, national origin, etc.

Yes.

30 minutes ago, SeekingUnderstanding said:

Quote

Fifth, I do see some distinctions, both ethically and legally, between preferred pronouns/deadnaming and your scenario.  A person can have a legitimate and good faith and non-harassing basis for declining to use preferred pronouns, or for declining to use a person's fabricated name rather than their actual one.  Preferred pronouns and using someone's fabricated name (instead of the "dead" name) are, if required, compelled speech, whereas using someone's temple name is not.  The Tinker test would, I think, put targeted religious harassment within the category of speech which a school can regulate, but I am less persuaded that the test would put preferred pronouns or "dead names" there.  

Who exactly is compelling speech?

California is.  See also here.

New York is.

Colorado kinda sorta is.

Previously, the federal government of the United States (since rescinded, I think).

Some jurisdictions outside the U.S., with less robust Free Speech protections, are.  Brasil, for example.  Possibly Scotland, the U.K.(see also here), Europe, the Philippines.

30 minutes ago, SeekingUnderstanding said:

Banning the use of someone's temple name is not compelled speech.  Banning the use of someone's deadname is not compelled speech.

No, but broadly it is punished speech.  Outside of the Tinker test, I think this is not allowed in the U.S., or should not be.

30 minutes ago, SeekingUnderstanding said:

In what way can that be construed as compelled speech? Do we have different definitions of compelled speech?

I'm not sure we have different definitions.

30 minutes ago, SeekingUnderstanding said:

Quote

"Deadnaming" is slightly different, as if a person legally changes his name, then I think there is less justification to use his/her former name.  But even then, I object to the State compelling use of the new name or punishing use of the old one (subject to narrow exceptions, such as for student speech during school hours on school property).

Isn't that exactly the context you linked to? Students attending university using a deadname to harrass a classmate? Because that's what you linked to.

Hence the parenthetical at the end.  I acknowledge that schools, under the Tinker test, can regulate speech (that is, punish speech, but I don't think they can compel speech).

30 minutes ago, SeekingUnderstanding said:

Quote

Ninth, if there were some effort by the State to compel you to refer to Joseph Smith as "the Lord's prophet," or if it were to punish you for speaking critically of him, I think you would object to that.  

I'm still not seeing how banning a deadname on campus is akin to a faith affirmation.

It's not.  "Banning a deadname on campus" is an example of punished speech.  The words are being prohibited (with punishment for their use), not compelled.

Again, if there were some effort by the State to compel you to refer to Joseph Smith as "the Lord's prophet," or if it were to punish you for speaking critically of him, I think you would object to that.  

30 minutes ago, SeekingUnderstanding said:

We are in agreement that if someone got up in a classroom and said "F*** the Mormons", that's not protected speech right?

Under the Tinker test, I think not.

30 minutes ago, SeekingUnderstanding said:

But for some reason you think a student using a deadname as harassment is protected speech?

Again: The Tinker test would, I think, put targeted religious harassment within the category of speech which a school can regulate, but I am less persuaded that the test would put preferred pronouns or "dead names" there.

Also, consider "preferred pronouns."  Is that "compelled" speech if the State requires their use?  Is it "punished" speech if they are not used?  Is it both?

Again, the Tinker test:

Quote

The test, as set forth in the Tinker opinion, asks the question: Did the speech or expression of the student "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or might it "reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?" The case holds that to justify suppression of speech, school officials would need to show that the conduct in question would "materially and substantially interfere" with the operation of the school.

I think targeted religious harassment would probably be held to "justify suppression of speech."

If a student declines to use a trans student's new name (calling him "John" instead of his preferred new name, "Jennifer"), would that pass the Tinker test?  Not sure, but I think probably not.

If a student declines to use biologically/linguistically incorrect pronouns (using "she/her" in reference to a trans-identifying male student), and/or if the student uses biologically/linguistically correct pronouns, does that pass the Tinker test?  Again, not sure, but I think probably not.

If a student does these tings to "harass" a trans student, that might, on a case-by-case basis, pass the Tinker test.  But I am less sure that a categorical mandate (students must use preferred pronouns) or a categorical prohibition (students are prohibited from using biologically/linguistically correct pronouns) would work.

Thanks,

-Smac

[SeekingUnderstanding]

43 minutes ago, smac97 said:

I think targeted religious harassment would probably be held to "justify suppression of speech."

If a student declines to use a trans student's new name (calling him "John" instead of his preferred new name, "Jennifer"), would that pass the Tinker test?  Not sure, but I think probably not.

Sure because religious bigotry = bad and trans-bigotry = protected speech. Got it.

You want to talk pronouns, that's great. Let's say you have a daughter (I believe this is correct!). Let's say an individual at school has decided that your daughter is not actually a girl but is a boy. This individual continually misgenders your daughter in front of other classmates. This is significantly undermining your daughter's mental health. What if anything can school officials do in the face of this harassment?

[smac97]

2 hours ago, SeekingUnderstanding said:

Quote

I think targeted religious harassment would probably be held to "justify suppression of speech."

If a student declines to use a trans student's new name (calling him "John" instead of his preferred new name, "Jennifer"), would that pass the Tinker test?  Not sure, but I think probably not.

Sure because religious bigotry = bad and trans-bigotry = protected speech. Got it.

I think you are misunderstanding me.  I am attempting to explain how the law works, not how you or I think it ought to work.

Members of a religion are a constitutionally suspect class, such that harassment on that basis is probably more likely to be regulated by the State in a school setting.  

So far, "trans" persons have not been treated as a suspect or quasi-suspect class.  And given the decision in Skrmetti, I don't think it will be so designated (perhaps not ever, but at least not in the near future).

Personally, I think the Tinker test may be resulting in too much State regulation of student speech.  There is at least one lawsuit that will probably test how far "misgendering" rules in schools can go:

Conservative advocacy group sues UC over misgendering policies and free speech

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The UC system is facing a federal lawsuit over allegations that its anti-harassment policies that prohibit repeated or intentional misgendering violate some students’ First Amendment rights.

National advocacy group Defending Education argues that systemwide rules punish students for expressing their belief that “biological sex is immutable” and require them to use classmates’ preferred names and pronouns.

Yeah, this is problematic.  It's compelled speech, and I don't think that will ever work under the Tinker test.

It's one thing to say "You can't use racist epithets while on campus."  That may be defensible under Tinker.  But "You must use these words in your speech" is quite another proposition.

Quote

The advocacy group is asking a federal court to issue a preliminary and permanent injunction barring the UC from enforcing its rules on misgendering and deadnaming — as well as any similar policies across the university — and to strike them down as unconstitutional.

“Under the guise of combatting ‘sexual harassment,’ UC has enacted a speech code that punishes students for engaging in protected speech and discourages them from expressing views outside of the university-approved mainstream,” the lawsuit said.

This is the risk Tinker creates.

Quote

According to the complaint, students have refrained from sharing their views on gender identity on- and off-campus because they fear being reported or disciplined for violating the policy.

The lawsuit also takes aim at other university protocols it claims violate the First Amendment, including the Anti-Discrimination Policy’s reinforcement of SVSH guidelines which prohibit harassment based on protected characteristics such as gender identity.

If "harassment" =  using a person's legal name or biologically/linguistically correct pronouns, I think that's a tough sell.

Quote

According to Stett Holbrook, spokesperson for the University of California Office of the President, both the SVSH and Anti-Discrimination policies were developed in accordance with federal and state law. He added that the protocols are implemented in a way that “recognizes the importance of rights to freedom of speech and expression.”

“The University of California is committed to fostering an environment that is welcoming to all while respecting freedom of speech and expression,” Holbrook said in a statement. “The purpose of these policies is to protect members of the University community from discrimination and harassment, not to regulate protected speech.”

And yet, it appears that it may very well "regulate protected speech."

Quote

However, the nonprofit similarly takes issue with the systemwide Sexual Harassment, Anti-Discrimination, Prevention and Education training. Better known as SHAPE, the mandatory course is assigned to students annually to test their knowledge of Title IX policy.

The program was launched in June 2025 by UC Online alongside the Systemwide Office of Civil Rights, and marked a “significant advancement” in campuswide training that supported the UC system’s “commitment to safe and inclusive campus environments,” according to a UCOP website about SHAPE.

The lawsuit objects to a specific scenario described in the training, where a transgender woman is repeatedly misgendered by her classmate — who continues to call her by the name she used before her transition, refers to her as a man and complains when she uses the woman’s restroom — even after she repeatedly asks the classmate to stop.

The training defines the situation as harassment through the creation of a “hostile environment.” The complaint argues that the training scenario is one-sided, since students are not given the option to say that the speech is not harassment.

This is not good for UC.  When "harassment" becomes code for "someone saying something I don't like," constitutional challenges will start to gather.

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“‘Anti-discrimination’ and ‘anti-harassment’ policies cannot be used as a sword to compel students to speak in the way the government dictates, contrary to their deeply held beliefs,” the lawsuit said.

I think that is correct.  Even in the 9th Circuit.

Quote

Omar Espinoza — an ASUC senator who represents the LGBTQ+ community on campus — said that the lawsuit is challenging protections that transgender students have relied on.

He said the policies serve to send an “important message” to LGBTQ+ students that they belong on campus and to ensure that the university has a legal obligation to investigate instances where they’re subject to discrimination or harassment.

The policies may also be used to compel and/or punish protected speech.  There's the rub.

2 hours ago, SeekingUnderstanding said:

You want to talk pronouns, that's great. Let's say you have a daughter (I believe this is correct!).

I do have a daughter.  Two, actually.

2 hours ago, SeekingUnderstanding said:

Let's say an individual at school has decided that your daughter is not actually a girl but is a boy.

That person would be factually wrong.

In contrast, let's say an individual at school has decided that, despite being a girl, she wants to "identify" as a boy.  Factually, her biological sex has not changed.  A girl does not "become" a boy by "identifying" as one.  So "she/her" pronouns are both biologically and linguistically accurate.  "He/him" are not.

2 hours ago, SeekingUnderstanding said:

This individual continually misgenders your daughter in front of other classmates.

Here "misgender" means "using male pronouns when referring to a girl."  I actually agree with you here, since such usage really is "misgendering" because the girl's biological sex is female, not male, so using male pronouns really would be "misgendering." Whether that amounts to "harassment," or otherwise actionable under Tinker, is a separate issue.

Generally, though, I think "misgender" means "using pronouns that reflect biological sex, rather than 'gender identity.'"

In any event, my analysis will not change whether it's my daughter or some other girl.  My assessment is based on the law, not emotion.

2 hours ago, SeekingUnderstanding said:

This is significantly undermining your daughter's mental health.

Person A using words "significantly undermines" Person B's "mental health"?  How?

Does any claim along the lines of "Hey, what you said has caused me mental anguish" work to curtail that other person's speech?

If I were to announce that your various denigrations of my faith and me personally have injured my mental health, ought that deprive you of your right to denigrate my faith and me personally?

What sort of limiting principle do you have in place?

If my daughter struggled with someone else's lawful speech, I would work with her on that.  I may also contact the other student's parents and see if we could work something out.  I would not seek to use the power of the State to curtail or punish or compel the other student's speech.  I would want to see the Tinker test strictly construed.  Here it is again:

Quote

The test, as set forth in the Tinker opinion, asks the question: Did the speech or expression of the student "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or might it "reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?" The case holds that to justify suppression of speech, school officials would need to show that the conduct in question would "materially and substantially interfere" with the operation of the school.

If Student A uses male pronouns when referencing Student B, a girl who "identifies" as a boy, does that "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or might it "reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?"  I think in most cases, no.  Perhaps a severe and ongoing case might be justified under Tinker.

2 hours ago, SeekingUnderstanding said:

What if anything can school officials do in the face of this harassment?

This presupposes that using male pronouns to refer to a girl is "harassment."

How many times?  In what setting?  Over what period of time?  How many other people heard this?  Was the girl present or not?  

And what of "misgendering" in the sense in which that word is normally used?  Ironically, "misgendering" typically means "using the biologically and linguistically correct pronouns and nouns" to describe someone.  That is, when Student A calls Student B, a boy who "identifies" as a girl, using he/him pronouns. 

Is it really your position that Person A using biologically/linguistically correct pronouns, is committing "harassment" by doing so?  If so, could you walk me through your reasoning?  I'd like to hear what you have to say.

Thanks,

-Smac

Edited 21 hours ago by smac97

[Calm]

Smac, would you see deadnaming as equivalent to refusing to use Latter -day Saint or other acceptable to the guidelines name and instead insisting on using “Mormon” even if a Saint asked them not to?  It is technically correct according to standard usage and church use up to not that long ago.

Not a challenge, am trying to understand where you place intentional deadnaming in the sense of harassment and bullying.

Edited 16 hours ago by Calm

[SeekingUnderstanding]

21 minutes ago, smac97 said:

I think you are misunderstanding me.  I am attempting to explain how the law works, not how you or I think it ought to work.

So when you said 

Quote

I think the State and its extensions should not regulate speech as to either "preferred pronouns" or "deadnaming."

you were not offering an opinion as to how the law ought to work?

[SeekingUnderstanding]

22 minutes ago, smac97 said:

I do have a daughter.  Two, actually.

That person would be factually wrong.

In contrast, let's say an individual at school has decided that, despite being a girl, she wants to "identify" as a boy.  Factually, her biological sex has not changed.  A girl does not "become" a boy by "identifying" as one.  So "she/her" pronouns are both biologically and linguistically accurate.  "He/him" are not.

Here "misgender" means "using male pronouns when referring to a girl."  I actually agree with you here, since such usage really is "misgendering" because the girl's biological sex is female, not male, so using male pronouns really would be "misgendering." Whether that amounts to "harassment," or otherwise actionable under Tinker, is a separate issue.

Generally, though, I think "misgender" means "using pronouns that reflect biological sex, rather than 'gender identity.'"

In any event, my analysis will not change whether it's my daughter or some other girl.  My assessment is based on the law, not emotion.

Person A using words "significantly undermines" Person B's "mental health"?  How?

Is it really your opinion that the words of peers can't impact one's mental health? I am happy that you have never had to deal with a child being bullied at school.

22 minutes ago, smac97 said:

Does any claim along the lines of "Hey, what you said has caused me mental anguish" work to curtail that other person's speech?

If I were to announce that your various denigrations of my faith and me personally have injured my mental health, ought that deprive you of your right to denigrate my faith and me personally?

What sort of limiting principle do you have in place?

Well, I'm asking you. But for me it's a careful balancing act. At a university you need to have venue's that promote vigorous speech, even speech that others find harmful. On the other hand, especially in the classroom, I think every student deserves a learning environment free from discriminatory harassment. I read through a couple of the policies at universities you cited and found their approach reasonable. Apply the same limiting principles already present around race, religion, national origin, sexual orientation, etc at these same universities.

22 minutes ago, smac97 said:

If my daughter struggled with someone else's lawful speech, I would work with her on that.  I may also contact the other student's parents and see if we could work something out.  I would not seek to use the power of the State to curtail or punish or compel the other student's speech.  I would want to see the Tinker test strictly construed.  Here it is again:

If Student A uses male pronouns when referencing Student B, a girl who "identifies" as a boy, does that "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or might it "reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?"  I think in most cases, no.  Perhaps a severe and ongoing case might be justified under Tinker.

This presupposes that using male pronouns to refer to a girl is "harassment."

How many times?  In what setting?  Over what period of time?  How many other people heard this?  Was the girl present or not?  

And what of "misgendering" in the sense in which that word is normally used?  Ironically, "misgendering" typically means "using the biologically and linguistically correct pronouns and nouns" to describe someone.  That is, when Student A calls Student B, a boy who "identifies" as a girl, using he/him pronouns. 

For the sake of argument, I am ceding that by any reasonable measure it constitutes harassment. The girl feels harrassed. The individual in question continually misgenders the girl say in hallways to laughing friends. The individual does it in the classroom as well. What if anything can the school do about this behavior?

[smac97]

13 minutes ago, SeekingUnderstanding said:

Quote

I think you are misunderstanding me.  I am attempting to explain how the law works, not how you or I think it ought to work.

So when you said 

Quote

I think the State and its extensions should not regulate speech as to either "preferred pronouns" or "deadnaming."

you were not offering an opinion as to how the law ought to work?

I was offering an opinion.  I was presenting a generalized rule.  I have elsewhere acknowledged that there exists something of an exception to that general rule, namely, the courts have allowed the State to regulate speech in some relatively limited circumstances (student speech on school property that passes the Tinker test) and in ways that the State is otherwise not allowed (i.e., the State can prohibit the use of racial or religious epithets in a school setting and under the Tinker test, whereas the State cannot prohibit the use of such epithets in most other circumstances).

So my opinion ("I think the State and its extensions should not regulate speech as to either 'preferred pronouns' or 'deadnaming'") is congruent with First Amendment jurisprudence generally.  But as with most principles of law, there are potential exceptions (such as public schools regulating speech under Tinker).

I have not fully explored the matter, but while a student using biologically/linguistically correct pronouns might be subject to regulation under Tinker (the more I think on it, the more dubious I am about it), I think the courts would be quite reluctant to allow Tinker to extend in ways that would allow the State to compel speech (such as is referenced in the lawsuit against UC).

Thanks,

-Smac

[SeekingUnderstanding]

10 minutes ago, smac97 said:

I have not fully explored the matter, but while a student using biologically/linguistically correct pronouns might be subject to regulation under Tinker (the more I think on it, the more dubious I am about it), I think the courts would be quite reluctant to allow Tinker to extend in ways that would allow the State to compel speech (such as is referenced in the lawsuit against UC).

Based on your posting here, you come across as having the opinion that deadnaming and misgendering in college classrooms *should be considered protected speech. That if it was up to you, that’s how you’d right the law. If that’s not your opinion I certainly would like to know. 

[smac97]

6 minutes ago, SeekingUnderstanding said:

Is it really your opinion that the words of peers can't impact one's mental health?

There can be such an impact, hence the fairly unique and narrow provisions under Tinker.

An across-the-board "Hey, what you said hurt my feelings or impacted my mental health" rule would turn students into tyrannical monsters, siccing the State on someone who said something - anything - that someone else might find problematic.

Again, the Tinker test:

Quote

The substantial disruption test is a criterion set forth by the United States Supreme Court, in the leading case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).^[1] The test is used to determine whether an act by a U.S. public school official (State actor) has abridged a student's constitutionally protected First Amendment rights of free speech.

The test, as set forth in the Tinker opinion, asks the question: Did the speech or expression of the student "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or might it "reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?" The case holds that to justify suppression of speech, school officials would need to show that the conduct in question would "materially and substantially interfere" with the operation of the school.^[2]

My junior high and high school experiences had a share of physical and verbal altercations.  But note that the benchmark the courts use is not "Did Student A's speech in any way injure Student B's mental health."  Again, such a rule would be impractical and tyrannical. 

Rather, the benchmark is "Did Student A's use of biologically/linguistically correct personal pronouns 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' or might it 'reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?'"

That is, or ought to be, a pretty high bar to meet.

6 minutes ago, SeekingUnderstanding said:

I am happy that you have never had to deal with a child being bullied at school.

I dealt with it.  Physical harassment/bullying is markedly distinct from verbal harassment, as the latter is presumptively protected under the Constitution, but the former is not.

A school prohibiting racial and religious epithets will, in many instances, pass muster under the Tinker test.

A school prohibiting biologically and linguistically correct personal pronouns may or may not pass muster (I'm leaning toward "not," thought I'd need to do some research).

A school compelling the use of biologically and linguistically incorrect personal pronouns would, I think, have a very hard time passing muster under Tinker.

6 minutes ago, SeekingUnderstanding said:

Quote

Does any claim along the lines of "Hey, what you said has caused me mental anguish" work to curtail that other person's speech?

If I were to announce that your various denigrations of my faith and me personally have injured my mental health, ought that deprive you of your right to denigrate my faith and me personally?

What sort of limiting principle do you have in place?

Well, I'm asking you. But for me it's a careful balancing act.

As it is, or ought to be, for most of us in our private lives.

Here, however, we are discussing public policy.  

6 minutes ago, SeekingUnderstanding said:

At a university you need to have venue's that promote vigorous speech, even speech that others find harmful.

I agree.  So I think colleges will have a harder time justifying speech restrictions/compulsions under Tinker.  The students are almost all adults, after all.  Time for them to transition into adulthood rather than expect coddling as they did in their childhood.

6 minutes ago, SeekingUnderstanding said:

On the other hand, especially in the classroom, I think every student deserves a learning environment free from discriminatory harassment.

That sounds nice.  But vague absolutes (such as "every student" and "free from" and "discriminatory harassment") will sooner or later need to be tested legally, and the resulting tension with the First Amendment must be addressed.

Do I deserve to go through life without you variously denigrating my faith and me personally?  Broadly, no (as we've discussed, some exceptions apply, such as State actors).

6 minutes ago, SeekingUnderstanding said:

I read through a couple of the policies at universities you cited and found their approach reasonable.

The courts will look at these policies in a more clinical and law-focused way.

Compelled speech by the State is going to be a tough proposition, even for the 9th Circuit.

6 minutes ago, SeekingUnderstanding said:

Apply the same limiting principles already present around race, religion, national origin, sexual orientation, etc at these same universities.

That's not as easy as it sounds.

Is the use of biologically/linguistically correct pronouns "harassment"?  Perhaps in some case-by-case situations, but broadly, I think not.  The First Amendment should hold some real sway here.

Can the State compel students to use certain words?  I think not.

6 minutes ago, SeekingUnderstanding said:

For the sake of argument, I am ceding that by any reasonable measure it constitutes harassment. The girl feels harrassed.

I think that the use of biologically/linguistically correct pronouns as "harassment" would need to be demonstrated, not merely assumed.  The subjective assessment "the girl" may or may not be reasonable, fair, congruent with the First Amendment, etc.  It is school administrators, not "the girl," who would make the determination.

And then there's the whole "compelled speech" part of this.

6 minutes ago, SeekingUnderstanding said:

The individual in question continually misgenders the girl say in hallways to laughing friends. The individual does it in the classroom as well. What if anything can the school do about this behavior?

By "misgenders the girl" do you mean the individual is using male (he/him) pronouns when talking about her?

Or by "misgenders the girl" do you mean the individual is using female (she/her) pronouns when talking about her?

Thanks,

-Smac

[smac97]

42 minutes ago, SeekingUnderstanding said:

Quote

I have not fully explored the matter, but while a student using biologically/linguistically correct pronouns might be subject to regulation under Tinker (the more I think on it, the more dubious I am about it), I think the courts would be quite reluctant to allow Tinker to extend in ways that would allow the State to compel speech (such as is referenced in the lawsuit against UC).

Based on your posting here, you come across as having the opinion that deadnaming and misgendering in college classrooms *should be considered protected speech.

Broadly, yes.  I think Tinker ought to be narrowly construed.

Adults ought to be free to say disagreeable things.  Look at the terrible things you so regularly say on this board about my faith and about me personally.  You do so via the First Amendment, and are thus protected from adverse State action, right?  Ought not other adults, even college students, have that same right?

42 minutes ago, SeekingUnderstanding said:

That if it was up to you, that’s how you’d right the law.

Proposition 1: The First Amendment should hold real and powerful sway against actions by the State.  Presumptions should strongly favor Free Speech over State regulation.

Proposition 2: The courts have allowed limited State incursions into regulating speech by students in a school setting.

Proposition 3: A case-by-case evaluation might yield a situation where "deadnaming and misgendering in {non-}college classrooms" passes the Tinker test, such that public schools can, under Tinker, punish a student for it.

Proposition 4: I think Tinker is or should be considerably harder to justify in a college setting.

Proposition 5: Courts must take great care to narrowly circumscribing the application of Tinker so that the exception (State regulation of speech) never comes close to swallowing the rule (Free Speech).

Proposition 6: I am hard-pressed to find any justification for the State to compel speech relative to "personal pronouns" and "deadnaming."

42 minutes ago, SeekingUnderstanding said:

If that’s not your opinion I certainly would like to know. 

I hope the foregoing clarifies things.

We both know you have a very low opinion of me as a human being:

• "your bigotry is showing"
• "And if you weren’t blinded by bigotry..."
• "your blatant bigotry is on full display"
• "displays your bigotry"
• "that makes you a bigot"
• "you are extremely blinded (bigoted)"
• "I have the right to call you a hateful bigot"
• "Evil, ignorant or bigoted. You choose."

I think this arises because we differ on some important philosophical areas.  Bigotry, though, is inherently irrational.  If though we will no doubt continue to disagree about some things, I hope this thread is showing that my perspective on this issue is borne of reasoned analysis.  Not bigotry or hate or fear.   

Thanks,

-Smac

Edited 19 hours ago by smac97

[Calm]

3 hours ago, smac97 said:

might it 'reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?'"

That is, or ought to be, a pretty high bar to meet.

Really?

[smac97]

13 minutes ago, Calm said:

Really?

Yep.  The alternative is to eviscerate the Free Speech rights of students.  

Thanks,

-Smac

[Calm]

2 hours ago, smac97 said:

Yep.  The alternative is to eviscerate the Free Speech rights of students.  

Thanks,

-Smac

What I meant is do you think it’s that difficult to predict when a student is going to be upset by being persistently teased in a way they have requested not to be?  The purpose of school is primarily for children to learn. A child who feels bullied has a harder time learning.  That to me is a substantial disruption of school activity.  

I have seen one kid move schools to get away from bullying.  It was easy to see the result once I knew what was going on.  I could have told the result as soon as I knew the plan of the brat who decided she was going to destroy her just because she could.  Unfortunately by the time I learned about it and could inform someone, the damage was done.  Kids do not bounce back resiliently just because we like to think they do.  

A teacher hearing someone being deadnamed persistently in spite of being requested not to, that’s obviously intentional…not that hard to predict the result on the person asking it not to be done.  Not that hard to predict the result of any kid being called something they believe is intended to be insulting, which deadnaming would be.  Even if you don’t want to use the new name, you can always see if it’s okay to call someone by their last name instead or find out a nickname they don’t mind.  Using last names are not unusual among kids.  The child who is insisting on persistently using the name is obviously bullying because if it was just religious objection to transitioning on principle, they could simply choose not to talk to the other child.

Edited 14 hours ago by Calm

[smac97]

9 hours ago, Calm said:

Quote

Quote

 

Quote

might it 'reasonably have led school authorities to forecast substantial disruption of or material interference with school activities?'"

That is, or ought to be, a pretty high bar to meet.

Really?

Yep.  The alternative is to eviscerate the Free Speech rights of students.  

What I meant is do you think it’s that difficult to predict when a student is going to be upset by being persistently teased in a way they have requested not to be?  

By "high bar" was referring to the Tinker test.  The State  - the public school - ought not to be allowed to punish speech unless it can "reasonably ... forecast substantial disruption of or material interference with school activities."  As I noted:

Quote

Is the use of biologically/linguistically correct pronouns "harassment"?  Perhaps in some case-by-case situations, but broadly, I think not.  The First Amendment should hold some real sway here.

Students have been unkind to other students for time out of mind.  So let's look at the article about the UC issue:

Quote

The lawsuit objects to a specific scenario described in the training, where a transgender woman is repeatedly misgendered by her classmate — who continues to call her by the name she used before her transition, refers to her as a man and complains when she uses the woman’s restroom — even after she repeatedly asks the classmate to stop.

The training defines the situation as harassment through the creation of a “hostile environment.” The complaint argues that the training scenario is one-sided, since students are not given the option to say that the speech is not harassment.

What are your thoughts about this?

The school policy presupposes that "misgendering" means using biologically correct personal pronouns, and that this is "harassment."

The school policy presupposes that using a person's legal name is "harassment."

The school policy presupposes that students are not allowed to object to a male entering a woman's bathroom, or vice versa, and that voicing that objection is "harassment."

The school policy presupposes that Student A has a special and privileged legal right and authority to tell Student B which words he can and cannot use, and that Student B's failure/refusal to submit to Student A's instruction "is harassment."

For me, the issue appears to be that the UC system may be using "harassment" as a pretext to impose and enforce on students one particular ideological perspective and punish them if they have and express a different perspective.  If so, then that amounts to "viewpoint discrimination":

Quote

Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.

Repeated or intentional use of biological-sex pronouns or a prior name is defined by the school as gender-based harassment that can create a "hostile environment." 

Students who believe sex is immutable therefore face discipline (or self-censor) for stating that view or declining to use preferred pronouns, while speech that affirms gender identity is not similarly restricted.

The mandatory SHAPE training presents only the “misgendering = harassment” scenario and gives students no option to treat the speech as protected. That combination—punishing one viewpoint, compelling the contrary one, and training students that only one answer is acceptable—looks like a classic First Amendment claim of viewpoint discrimination by a public university.

9 hours ago, Calm said:

The purpose of school is primarily for children to learn. A child who feels bullied has a harder time learning.  That to me is a substantial disruption of school activity.  

I have seen one kid move schools to get away from bullying.  It was easy to see the result once I knew what was going on.  I could have told the result as soon as I knew the plan of the brat who decided she was going to destroy her just because she could.  Unfortunately by the time I learned about it and could inform someone, the damage was done.  Kids do not bounce back resiliently just because we like to think they do.  

A teacher hearing someone being deadnamed persistently in spite of being requested not to, that’s obviously intentional…not that hard to predict the result on the person asking it not to be done.  Not that hard to predict the result of any kid being called something they believe is intended to be insulting, which deadnaming would be.  Even if you don’t want to use the new name, you can always see if it’s okay to call someone by their last name instead or find out a nickname they don’t mind.  Using last names are not unusual among kids.  The child who is insisting on persistently using the name is obviously bullying because if it was just religious objection to transitioning on principle, they could simply choose not to talk to the other child.

Bullying that targets a specific kid to isolate or torment them is a real problem, and schools can generally implement policies to curb it.  That said, it seems like persistent, targeted cruelty is not the same thing as a student declining to use words that contradict what they believe is true.

“Substantial disruption” is a legal standard, not an individual student's feeling. Under Tinker, student speech can be limited when it materially disrupts class or invades another student’s rights, not when someone is distressed by hearing a contested view. If distress from disagreement were enough, the school could ban any speech a classmate finds insulting: religious claims, political claims, or statements about sex. That is how a harassment rule becomes a viewpoint rule.

Deadnaming after a request can be unkind, but I am skeptical that it is automatically “obviously intentional bullying” just because the speaker will not affirm a new identity. A student who believes sex is binary may be stating a fact or a conviction, not inventing an insult. The same logic would treat a student who insists on preferred pronouns after being asked not to as a bully—yet the policy only runs one direction.

“Just don’t talk to them” is not a real classroom option. Students share groups, roll call, and assignments. A rule that says “use the new name or stay silent, but never use the old one” still picks a side. Last names or nicknames can be courtesy both ways; they are not a duty to adopt one student’s theory of identity.

The hard part is holding two things at once: protect kids from targeted harassment, and do not let the school decide which view of sex and names is the only one allowed to be spoken.

Thanks,

-Smac

Edited 4 hours ago by smac97

[Calm]

1 hour ago, smac97 said:

What are your thoughts about this?…

it seems like persistent, targeted cruelty is not the same thing as a student declining to use words that contradict what they believe is true.

I think a lot of adults are oblivious to how much “teasing” is actually bullying and is cruel, even if unintentional.  And if it’s persistent, I have major doubts about it not being intentionally cruel because there are ways to avoid using any undesired name if one wants to.  Along with being oblivious to what can be bullying, many adults are oblivious to how much that can affect the quality of life for our kids.   

My daughter had a very smart, very cruel young lady in her elementary classes who was very good at tormenting while not breaking any obvious rules.  I don’t believe high schools and younger  should be restricted to set in stone rules and instead should operate more on a case by case basis so these kinds of tyrants don’t have free rein to play their power games.  My daughter was never a threat, but I was definitely worried she would be a target because she was best friends with the popular girl that the queen bee wanted to own.  Thankfully my daughter’s friend protected her.  I had tutored her after school when they first immigrated, they would play a lot, so my daughter was her first and enduring  Canadian friend (even if she was technically American having spent her first month in the US).  I also had a good relationship with her.  She was wonderful herself, but also dominated by the tyrant to a great extent because their families were close having immigrated at the same time and were involved in the same communities outside of school.  It made it impossible for her to threaten to distance herself from the tyrant in order to dampen the power games, which was pretty much the only thing that worked.  

Just because ‘teasing’ kids by kids has been happening for ages doesn’t mean it’s healthy or not a big deal.  Wife beating happened for ages, we finally grew up enough to realize it wasn’t a man’s right or duty to ‘discipline’ his wife.  Once we put in enough effort to really determine how much kids are affected by such treatment when young, we will be horrified at the damage that was allowed.  And thinking it’s better that they get exposed to cruelty in their youth so they will toughen up and be ready for the real world doesn’t understand that the more confident kids are the ones that feel secure and relaxed, not the ones that act tough because that’s how they protect themselves.  

Edited 4 hours ago by Calm

[SeekingUnderstanding]

15 hours ago, smac97 said:

By "misgenders the girl" do you mean the individual is using male (he/him) pronouns when talking about her?

Or by "misgenders the girl" do you mean the individual is using female (she/her) pronouns when talking about her?

Thanks,

-Smac

This is getting weird. I have no access to your hypothetical daughter's gametes (which I believe is how you define both sex and gender) nor do I want it.

Let me try again. Let's pretend you have a daughter named Patricia. Patricia has always struggled with body issues because she doesn't feel as attractive as her sister or mother. At school there are a few individuals that claim to believe that Patricia is actually a boy. These students refuse to use your daughter's name. Instead they call her Patrick. When Patricia exits the women's bathroom and these individuals are nearby, they loudly point out that a male has just exited the women's bathroom and "What is the world coming to when we allow men into women's spaces". These bullies (my term, but feel free to disagree) loudly misgender your daughter in class and in the hallways. These students never overtly threaten your daughter. Your daughters grades are dropping. You found out she is cutting classes she shares with these students. She's starting to cut herself and express suicidal thoughts. 

What if anything *should* the public school be allowed to do to address this situation.

[smac97]

11 minutes ago, Calm said:

I think a lot of adults are oblivious to how much “teasing” is actually bullying and is cruel, even if unintentional.  And if it’s persistent, I have major doubts about it not being intentionally cruel because there are ways to avoid using any undesired name if one wants to.  

This presupposes that Student A has, or should have, a legal obligation to "avoid using any undesired name" ("undesired" by Student B).  

Can Student A also be punished for calling Student B "Andy" instead of "Andrew" if Student B dislikes the former?

11 minutes ago, Calm said:

Along with being oblivious to what can be bullying, many adults are oblivious to how much that can affect the quality of life for our kids.  My daughter had a very smart, very cruel young lady in her elementary classes who was very good at tormenting while not breaking any obvious rules.  I don’t believe high schools and younger  should be restricted to set in stone rules and instead should operate more on a case by case basis so these kinds of tyrants don’t have free rein to play their power games.  

Looks like we're both on board with a "case-by-case" approach.  We may differ as to how many of those cases will pass the Tinker test.

11 minutes ago, Calm said:

Just because ‘teasing’ kids by kids has been happening for ages doesn’t mean it’s healthy or not a big deal.  

I am not suggesting otherwise.

Rather, I am evaluating what schools can do about it while remaining within constitutional parameters.

11 minutes ago, Calm said:

Wife beating happened for ages, we finally grew up enough to realize it wasn’t a man’s right or duty to ‘disciple’ his wife.

Wife beating did not involve potential and/or actual infringements on First Amendment protections.  What we are discussing here does involve that.

Thanks,

-Smac

[smac97]

54 minutes ago, SeekingUnderstanding said:

Quote

By "misgenders the girl" do you mean the individual is using male (he/him) pronouns when talking about her?

Or by "misgenders the girl" do you mean the individual is using female (she/her) pronouns when talking about her?

This is getting weird.

Legal analysis sometimes requires scrutiny of things that persons new to it find discomfiting.  Nevertheless, what "misgender" means has, I think, some substantial legal import in this context.

54 minutes ago, SeekingUnderstanding said:

I have no access to your hypothetical daughter's gametes (which I believe is how you define both sex and gender) nor do I want it.

I think it's been pretty clear that I do not subscribe to recent trends in trans ideology.  So when I reference my daughter, I think you can safely assume she is a girl, a biological female.

54 minutes ago, SeekingUnderstanding said:

Let me try again. Let's pretend you have a daughter named Patricia.

And Patricia is unequivocally female.  She does not have a DSD.  She acknowledges that she is a girl (she does not "identify" as a boy).

Am I on track here?

54 minutes ago, SeekingUnderstanding said:

Patricia has always struggled with body issues because she doesn't feel as attractive as her sister or mother. At school there are a few individuals that claim to believe that Patricia is actually a boy.

Got it.

54 minutes ago, SeekingUnderstanding said:

These students refuse to use your daughter's name. Instead they call her Patrick.

These hypothetical students are doing this not because there is a plausible basis for viewing Patricia as a boy, and not because Patricia is claiming to be a boy, but rather simply to tease/bully here.  Am I on track here?  

54 minutes ago, SeekingUnderstanding said:

When Patricia exits the women's bathroom and these individuals are nearby, they loudly point out that a male has just exited the women's bathroom and "What is the world coming to when we allow men into women's spaces".

And these students have no legitimate basis for stating that "a male has just exited the women's bathroom" because Patricia is biologically female.

Am I on track here as well?

54 minutes ago, SeekingUnderstanding said:

These bullies (my term, but feel free to disagree) loudly misgender your daughter in class and in the hallways.

So we're back to "misgender."

By "misgender your daughter" you mean they are using biologically/linguistically incorrect pronouns (he/him) to reference Patricia, correct?

By "misgender your daughter" you do not mean they are using biologically/linguistically correct pronouns (she/her) to reference Patricia, correct?

54 minutes ago, SeekingUnderstanding said:

These students never overtly threaten your daughter. Your daughters grades are dropping. You found out she is cutting classes she shares with these students. She's starting to cut herself and express suicidal thoughts.

That would be very troubling.

54 minutes ago, SeekingUnderstanding said:

What if anything *should* the public school be allowed to do to address this situation.

The Patricia hypothetical is ugly, and a school should be allowed to stop it.

I think it is not the same case as a student demanding biologically false pronouns.

Patricia is a girl. “Patrick,” plus hallway announcements that “a male just left the women’s bathroom,” is not a disagreement about metaphysics. It is a targeted campaign to humiliate one identified student with a false name and a false sex. That is ordinary sex-based harassment. Grades dropping, cutting class, and self-harm are reasons for the school to act on that conduct toward her: no-contact orders, schedule changes, discipline for repeated disruption and targeting, and getting her real help. None of that requires a campus speech code about “gender identity.”  And it really does not require the school - an extension of the State - to compel students to speak words they do not want to speak.

In contrast, a boy who "identifies" as a girl is asking classmates to treat a male as if were a female.  That is an ideological request.  Refusing that request is a statement about sex. It is not inventing a mock name for a girl and hunting her at the bathroom door. One is ridicule of a known person with facts inverted to wound her. The other is declining to affirm a contested and biologically incoherent claim. Lumping them together is how “don’t torment Patricia” becomes “you must say she/her about a male.”

So, what a public school should be allowed to do in Patricia’s case:

• Stop repeated, directed ridicule of a particular student. Tinker already covers speech that materially disrupts school or invades another student’s rights. A pack following one girl and announcing her as a man in the hall is that.
• Keep sex-separated spaces. The cruelty in the hypo depends on the students lying about her sex. The fix need not be “gender identity” rules, but can rather be enforcing that girls’ facilities are for girls and that classmates may not run a public ritual of humiliation.
• Address the self-harm as a safety and clinical problem with her parents.  This does not require the school to adopt one side of the sex/gender debate as official truth.

The foregoing approach does not encroach on the First Amendment, and would likely be just as effective, if not more so, than an approach which does encroach on the First Amendment.

What the school should not be allowed to do, in either case:

• Treat every use of sex-based language as “bullying” because someone is distressed.
• Compel other students to use words they believe are false.
• Collapse “don’t single out Patricia for a false name” into “you must use preferred pronouns.”

If the only tool you have is “'misgendering' is harassment,” you cannot tell these situations apart. If you can tell them apart, you do not need that tool. Protect Patricia from a targeted lie about her. Do not conscript the rest of the school into a pronoun rule that would have the school - the State - punish a student for saying a boy is a boy.

Thanks,

-Smac

Edited 3 hours ago by smac97