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The law comes in the wake of the Supreme Court’s landmark ruling in 303 Creative v. Elenis that said the government cannot compel a person to speak a message or words against their will or beliefs.
On Monday, Idaho Gov. Brad Little, R, signed a law that bars schools from punishing employees or students who refuse to use a transgender person’s preferred pronouns and that also prohibits school staff from using a child’s preferred name or pronouns without parental consent.
The law states that it is the legislature’s intent to protect free speech and “ensure that no person in the State of Idaho is compelled by any governmental entity in the State of Idaho to communicate statements that such citizen believes to be false.”
The legislature noted that numerous government actors around the country had attempted to force public employees, public school staff, and students to use a person’s preferred name and pronouns.
In order to protect freedom of speech, the law bans any governmental entity from requiring that a public employee or public school student use a person’s preferred pronouns or name that do not match the person’s sex.
Additionally public staff or students may now file a private cause of action if a public entity violates the law.
Public school staff are also barred from using any name other than the student’s given name or a derivative of their given name or from using pronouns different from the child’s sex without parental consent.
Little also signed HB 421 which defines sex and gender as synonymous. The legislation states that there are only two sexes, every person is either male or female, every person’s sex can be verified at birth, rare disorders of sexual development are not exceptions to the binary nature of sex, and “in no case is an individual’s sex determined by stipulation or self-identification.”
Pro-LGBT groups and legislators claimed that the laws allow for discrimination.
Mistie DelliCarpini-Tolman, Idaho state director of Planned Parenthood Alliance Advocates, issued a statement saying that Little should “be ashamed” of “ending this session by signing highly controversial and harmful bills that target LGBTQ+ Idahoans. People from every corner of the state showed up at every possible opportunity to warn about the impacts of HB 421 and HB 538, and to respond by completely ignoring valid concerns is callous and cruel. We’re heading in the wrong direction. Our state needs more kindness, compassion, understanding – not permission to discriminate against others.”
The American Civil Liberties Union (ACLU) said that the law allows teachers to intentionally misgender students and would result in discrimination.
On the other side, Ted Hill, R, the law’s sponsor, said, “This is a battle line we have to draw. This is the battle line. It’s First Amendment rights and that’s the whole issue here.”
Matt Sharp, senior counsel with Alliance Defending Freedom, which has represented several clients on this issue across the country, celebrated the new law, saying,
“No one should lose their job or face punishment at school for declining to say something they believe is false. Words and language carry meaning, and when used properly, they tell the truth about reality, feelings, and beliefs. Yet forcing individuals to say things that are untrue—such as inaccurate names, pronouns, and titles—imposes real harm on the speaker…All of society benefits when freedom of speech and conscience flourish.”
The issue of compelled use of pronouns or chosen names has resulted in numerous lawsuits around the nation as some employees refuse to use them.
In December 2023, the Virginia Supreme Court ruled that former French teacher Peter Vlaming’s case may proceed after he was fired for refusing to use preferred pronouns. The court wrote that “Absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs.”
Also in Virginia, Loudoun County teacher Tanner Cross was suspended for saying he would not “lie” to students by using pronouns that did not match a student’s sex. The state’s Supreme Court ordered that Cross be reinstated, writing, “[I]t is settled law that the government may not take adverse employment actions against its employees in reprisal for their exercising their right to speak on matters of public concern.”
In Kansas, teacher Pamela Ricard filed suit after her school district implemented a policy requiring her and other teachers to lie to parents if their child wanted to be called a different name or pronouns; she later won a settlement awarding her $95,000.
The U.S. Court of Appeals for the Sixth Circuit sided with university professor Nick Meriwether, who refused to use a student’s preferred pronouns. Shawnee State University had disciplined Meriwether, leading to him suing his employer.
Judges with the Sixth Circuit wrote,
“Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.”
Meriwether was given $400,000 in a settlement.
By contrast, the Seventh Circuit Court of Appeals ruled against John Kluge, who would have been fired had he not resigned due to his refusal to use students’ preferred pronouns.
In HB 538 the legislature quoted the Supreme Court’s ruling in 303 Creative v. Elenis in which the Court stated that no government actor may seek “to compel a person to speak its message when he would prefer to remain silent or force an individual to include other ideas with his own speech that he would prefer not to include.”
It follows numerous Supreme Court rulings saying that the government cannot compel a person to speak a message they would rather not speak.
In other words, the First Amendment doesn’t just protect your right to speak, it also protects your right not to speak, especially when that speech is being compelled against your sincerely held beliefs.
It makes sense that the Supreme Court would uphold the right to the full range of free expression. It was of pivotal importance to the Founding Fathers, who would later include it in the First Amendment as one of the foundational principles of a free society.
Benjamin Franklin wrote in the Pennsylvania Gazette,
“Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.”
Again, to have true freedom of speech you must also have the freedom not to speak. A transgender person may find it objectionable that a person would not use their preferred pronouns, but to compel a person by force of government to disingenuously deny their beliefs and speak a message they believe to be a lie would violate the very essence of freedom.
George Washington poignantly stated,
“If men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.”
If the government can stop a person from speaking, such as stating, “There are only two genders,” or if it can compel a person to state that there are innumerable genders, then we have no freedom. Idaho’s law protecting against compelled assent to transgender orthodoxy protects against such violations of freedom.
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