Employees of one Virginia school district must now call each other by the pronouns that reflect the person's sex at birth.
Workers can't be compelled to violate their principles by using pronouns they consider inappropriate, theChesapeake School Boarddecided in December.
The board is one of many passing similar regulations. In 2025 alone, aWisconsin school district settled a lawsuitfiled by one of its teachers who wasfired after failing to use a transgender student's preferred pronouns,and anappellate court ruled against an Ohio school districtthat implemented a policy prohibiting offensive or insulting pronoun-related language.
PresidentDonald Trump's administration has gotten involved in the matter as well.
Trumpsigned an executive orderin January prohibiting K-12 schools that receive federal funding from engaging in what the order described as "illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology." The order's definition of "social transition," which it bars federal funding recipients from supporting in students, includes using pronouns that don't align with a person's biological sex.
And at the Religious Liberty Commission'sSeptember hearing on religious liberty in education, commissioners heard testimony from Monica Gill, a Virginia teacher who waspart of a lawsuitover adistrict policy compelling teachersto use students' preferred names and pronouns.
Whether or not school pronoun policies are constitutional is a complicated matter made even more challenging by the contradictory ways in which different courts have ruled on such cases, saidAlex Morey, an expert at the Freedom Forum, anonpartisan organization that supports the First Amendment.
But the growing number of these cases may be laying the groundwork for the nation's highest court to weigh in.
"Historically, the more theSupreme Courtsees confusion about the law, the more likely they are to step in and provide needed clarity," Morey said.
Government can't compel speech
Though the overall matter is complex, Morey said there are certain elements of such debates that have been largely settled.
Private schools, for example, have much more leeway to implement such policies because they aren't state actors andtherefore aren't boundbytothe First Amendment.
That's why the "real heart of this issue" lies in public schools, she said.
"They are the state," she said. "Every time they make a regulation that impacts speech, the First Amendment can be at issue."
Another settled notion is that the government cannot compel speech.
Morey pointed toWest Virginia State Board of Education v. Barnette, a 1943 case in which the Supreme Court ruled that a policy requiring public school students to salute the American flag was unconstitutional.
Further, the Supreme Court opinion in1969's Tinker v. Des Moines Independent Community School Districtfamously said, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
"Schools cannot, as a broad matter, compel teachers and students to express some view that they don't hold," Morey said.
'Watch this space,' expert says
But other elements are more complicated.
A 2006 Supreme Court case,Garcetti v. Ceballos,established that public employers can impose restrictions on employee speech made while on duty without violating the First Amendment.
And off-duty speech can also be punished if it's proven to have disrupted the work and educational environment, as established in1968's Pickering v. Board of Education.
Morey said it's unclear whether a public school teachers' use of particular pronouns in the classroom is personal or professional speech.
The same question underlies alawsuit filed by a dozen former FBI agentswho were fired after kneeling while patrolling protests over George Floyd's murder in 2020. The agents claimed that their action was not meant as political speech but rather a strategic decision made in an effort to lower the temperature of a hostile crowd.
Such factors make it harder for educators to win in court on claims that their free speech rights were violated.
"Practically, teachers are losing a lot of these cases," Morey said.
Ultimately, when it comes to the question of whether and to what extent such policies are constitutional, she said to "watch this space."
"No matter where you fall on the spectrum politically, people want to know what they can say, must say, should say and teachers are eager to have a fuller understanding of what their rights are in and out of the classroom, particularly on this pronoun issue," Morey said.
Contributing: Kelly Meyerhofer
BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her atbjfrank@usatoday.com.
USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.Funders do not provide editorial input.
This article originally appeared on USA TODAY:Do school pronoun policies violate free speech? It's complicated.
