by Greg Piper
First Amendment experts, radical feminists and doctors are pushing back against a court ruling that held two educators responsible for their own firing because their opposition to a proposed gender identity policy sparked student protests and community complaints to Oregon’s Grants Pass School District.
U.S. Magistrate Judge Mark Clarke botched Supreme Court precedents on the speech rights of public employees and qualified immunity from personal liability, upheld restrictions that disproportionately target women and adopted pseudoscientific language, according to ideologically diverse friend-of-the-court briefs filed with the 9th U.S. Circuit Court of Appeals.
Clarke’s dismissal of the educators’ lawsuit “effectively endorses a heckler’s veto” by holding Rachel Sager and Katie Medart responsible for “community backlash” to their speech as private citizens, according to the brief by the Foundation for Individual Rights and Expression (FIRE).
The duo is appealing Clarke’s determination that their advocacy during classroom breaks “took place as public employees” and their “I Resolve” campaign and video, which supports school restrooms and locker rooms remaining segregated by sex and employees not being forced to use students’ preferred pronouns, “caused a disruption” to the district.
The judge also ruled their campaign sought to restrict students’ rights to “speak, express, and conduct their lives based on their expressions of their own sexualities and gender identities.”
The 9th Circuit has “repeatedly held that school districts may not retaliate against their employees because some disagree” with their views stated “off campus and off duty,” which the district unconstitutionally presumes to regulate at all times, according to the educators’ opening brief by the Alliance Defending Freedom and Pacific Justice Institute.
Oregon’s constitution provides even broader protection than the First Amendment and “specifically prohibits the government from enforcing a uniform vision on human sexuality,” the brief also states.
“Advocating for solutions [Sager and Medart] believe in should not cost them their jobs, especially when it comes to education policy, a topic on which they are uniquely qualified to speak,” ADF legal counsel Matthew Hoffman said.
The court docket shows that ADF has posted all the outside briefs that have been filed as of Tuesday, all in favor of Medart and Sager. Conspicuously absent: the American Civil Liberties Union or the group’s state affiliates in the 9th Circuit’s jurisdiction, including Oregon’s. Neither national nor Oregon affiliate responded to queries.
North Middle School science teacher Medart and assistant principal Sager, who began the litigation as Rachel Damiano, got reinstated to “inferior positions” after a school district board member flipped his vote, according to ADF’s brief.
Medart was relegated to “online school” despite an in-person science opening, which “drastically limited her interactions with students,” while Sager quit after administrators found her “deficient” across the board in “equity” and told her to “agree to a plan of assistance.”
FIRE’s brief states the district failed to meet the 9th Circuit’s criteria for regulating public employee speech on matters of public concern under the SCOTUS precedent Pickering.
Governments can only invoke disruption when it affects “the classroom, not the teacher’s lounge or the local community,” complaints must “come from students and parents, not teachers and outside community members,” and “disruption must be caused by the speaking employees themselves, not outraged community members who cause a ruckus,” it says.
Officials should have known from a 2004 precedent in the 9th Circuit that they cannot condition a teacher’s public employment “on her refraining from speaking out on school matters,” FIRE said, in that case a physical education teacher who was punished for challenging Portland Public Schools’ neglect of her disabled students.
Seventeen years later, “any reasonable school board official … should have had fair warning” they would not enjoy qualified immunity, the brief says. “[U]nlike police facing imminent danger on the street, school board officials evaluating whether to fire two employees through a lengthy process that included two public hearings and an outside investigator have ample time to recognize the First Amendment rights at stake.”
Learn more about the intersection of pronouns, free speech, and the First Amendment with FIRE's FAQ! 🔥https://t.co/YkC8zJYJ7C
— FIRE (@TheFIREorg) September 18, 2023
The Women’s Liberation Front’s brief questions the district’s viewpoint-neutral portrayal of its “controversial issues” policy, which requires teachers to provide disclaimers when sharing “personal viewpoints,” when in practice it exempts pro-Black Lives Matter speech while explicitly opposing the “I Resolve” message.
“Academic educational researchers and political advocates can be frequently found insisting that teachers have an obligation to speak instead of remain silent,” WoLF says, adding it couldn’t find any statement from national groups that “teachers with the correct opinions (such as the hecklers) should be held to the same standard as Rachel and Katie.”
The gender-critical group says such “prior restraint” on teachers has a “disproportionate impact on women” because they form 75% of the education workforce, according to Department of Education statistics.
“Outsized emotional reactions by others are not a valid basis for diminishing protections for women under the law,” says WoLF, which claims several of its supporters are “women who have lost employment and have been shunned by professional networks” for saying “human sex is immutable.”
University of Notre Dame law professor Gerard Bradley, who questioned the science and ethics behind campus COVID-19 mandates in a Wall Street Journal op-ed, filed a brief on behalf of medical professionals in “pediatrics, pediatric psychology, endocrinology, pediatric endocrinology, and family medicine,” including three leaders in the American College of Pediatrics, a competitor to the “gender affirming” American Academy of Pediatrics.
Led by board-certified endocrinologist Michael Laidlaw, who treats detransitioners, the group urged the 9th Circuit to correct Judge Clarke’s misconceptions about the science of sex and the nature of gender-affirming practices, even “social transitioning” short of medical interventions.
Sex is immutable, even if “subsequent events in development …may alter the phenotypic expression of sex,” their brief reads. Far from disproving the binary, “intersex” is an “anomalous condition that underscores the norm of male and female.”
By letting children use the restroom or choose pronouns based on gender identity, schools “reinforce false ideas about the nature of sex” that are “a product of ideology, and not of science,” according to the group.
Socially transitioning them at school “derails natural desistance and instead ensures their gender dysphoria is locked in,” plausibly causing “a form of iatrogenic harm” in which purported treatment makes gender distress worse and starts them down the path of medical procedures with high complication rates, the brief says.
It cites pre-transition desistance rates of 61-98% in 2016 and 2021 studies and 94% five-year continuation rates in socially transitioned youth from 2022 research, as well as the theory of rapid-onset gender dysphoria to explain the spike in adolescent girls who transition, often in social or online groups.
“The educators in this case were acting in the best interest of students’ health and safety by resisting policies which, in fact, eschewed science and common sense in favor of a gravely harmful gender ideology,” the medical professions claim.
The Defense of Freedom Institute for Policy Studies, Ethics and Public Policy, First Liberty Institute, Southeastern Legal Foundation and Mountain States Legal Foundation, and Thomas More Society also filed briefs.
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Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education.
Photo “Katie Medart and Rachel Sager” by ADF.
