Regulating LGBTQ Speech in the Classroom

Abstract

Public school teachers across the country have found their speech relating to LGBTQ students and issues more regulated than ever. In left-leaning states, some religious teachers have objected to schools forcing them to address their transgender and nonbinary students by their preferred names and pronouns under anti-discrimination policies. In right-leaning states, teachers have objected to the silencing of any discussion around LGBTQ issues under “Don’t Say Gay” laws.  

Under existing free speech jurisprudence, anything that teachers say while discharging their job responsibilities is likely not protected by the Free Speech Clause. When teachers speak “pursuant to their official duties,” like classroom instruction, they are deemed to be speaking as the government and not as a private citizen. According to the relatively new government speech doctrine, the Free Speech Clause does not reach government speech.

This essay argues that the fundamental problem with this result is that it mistakenly assumes that the Free Speech Clause protects only speakers and not audiences. After all, the premise of denying any free speech protection to public employees speaking pursuant to their official duties is that the government, rather than a private person, is the real speaker. But the Free Speech Clause cares as much about ensuring an unimpeded stream of speech for audiences as it does about ensuring that speakers have the freedom to speak their mind. Prior cases involving government employee speech astutely recognized that the Free Speech Clause protected audiences as well as speakers. Unfortunately, this insight has been lost in the abrupt adoption of the government speech doctrine for government employee speech.

If the LGBTQ regulations are evaluated with an eye on the value of the teacher’s speech for audiences rather than speakers, then requiring teachers to use appropriate pronouns for transgender and nonbinary students benefits the students addressed, while barring teachers from discussing issues related to sexual orientation and gender identity actually harms rather than helps student audiences, which includes many LGBTQ students.

Keywords: First Amendment, Free Speech, Public Schools, Public employee speech, government speech, LGBTQ, Don't Say Gay, Misgendering, Audiences