The Government Schools Persist in Mandating Gender Ideology

Does a substitute teacher who refuses to lie to parents about the expressed gender identity of their minor child, or who won’t follow a directive to use “preferred pronouns,” have a claim for violation of her First Amendment rights of free exercise and free speech?

To both these questions, a panel of the U.S. Court of Appeals for the Fourth Circuit said no.

Gender identity is the progressive Left’s totem of absolution in education, a baffling commitment considering the vast public sentiment supporting the limitations of its reach. Statistics show, for example, that an overwhelming majority of Americans want sports separated by sex and believe schools shouldn’t deceive parents on the gender identity of their minor children. But the volume and pace of federal litigation on these policies indicate there is no softening of the collective mind on transgenderism within the education industrial complex. Our research shows, for example, that over 1,200 school districts (representing nearly 12.5 million school children) employ express policies requiring that school employees lie to parents about their children’s gender identity. It took our federal lawsuit and a ruling from the U.S. Court of Appeals for the Sixth Circuit sitting en banc, to defeat mandatory pronoun policies (disguised as “anti-harassment” edicts)—in Olentangy, Ohio Public Schools—one of countless school districts nationwide with the same policies.

So, while the nature of the relief sought by substitute teacher Kimberly Ann Polk was uncontroversial and increasingly common, the court’s ruling denying her a request for a preliminary injunction on all her claims certainly was. One need look no further than Judge James Harvie Wilkinson’s strenuous dissent in her case for evidence of how badly the Fourth Circuit (this same court was recently overturned by the Supreme Court in a religious parental rights challenge over LGBTQ+ curriculum opt-outs in Mahmoud v. Taylor) botched the analysis. Apropos, and from a statistical standpoint, the Fourth Circuit’s rulings last term were so unusual that it had a reversal rate of 100%. Evidence is mounting that there is something rotten in the Fourth Circuit Court of Appeals.

In Polk v. Montgomery County Public Schools, (4th Cir. January 28, 2026), that Circuit’s jurisprudence went awry, again. 

In an opinion by Judge King and joined by Judge Thacker, the court upheld Montgomery County Public Schools’ (MCPS) Guidelines for Student Gender Identity against Polk’s First Amendment challenges. Those guidelines required staff to use students’ preferred names and pronouns and to withhold information about a student’s gender identity from parents without the student’s consent. Polk, a Christian whose faith teaches that sex is binary and immutable and that parents hold primary authority over their children’s upbringing, objected on free-exercise and free-speech grounds. The district held that against her free exercise challenge, the school Guidelines could “easily pass” rational basis review as a “neutral and generally applicable” regulation under the oft-maligned Employment Division v. Smith. It went on to determine that, as a government actor, her free speech claim was governed by Garcetti v. Ceballos (2006). In Garcetti, the Supreme Court held that the First Amendment does not protect speech by public employees made as a part of their official job duties.

The district court characterized the speech provisions required by Montgomery County Schools employees as just that kind of speech, leaving Polk without First Amendment protection. Finally, the lower court determined that while the school board had rejected Polk’s religious accommodation claim under Title VII of the Civil Rights Act of 1964, it had done so directly because her proposed accommodation would cause “undue hardship.” That fact-specific inquiry required the further probative effects of discovery, and so her “sole remaining claim in the lawsuit” could move forward.

After confirming its pendent jurisdiction over Polk’s First Amendment claims, the appellate panel was quick to affirm the lower court’s dismissal of both.

Judge King wrote: “How a teacher addresses a particular student in a particular classroom—and whether a teacher communicates with a student’s parent—is merely a part of that teacher’s job description.” He continued that “Accepting her position as an elementary school substitute teacher subjected Polk to a substantial degree of control by the democratically-elected Board.” If the challenged speech were made as a citizen and addressed a matter of public concern, only then would the court move to the second prong of the balancing test first articulated in Pickering v. Bd. of Educ. of Twp. High Sch (1968): balancing “the interest of the employee in speaking freely with the interest of the government in providing efficient services.” But the court felt it needn’t go that far. 

Polk was, it reasoned, subject to the school board’s official duty regulations and had relinquished the right to say what she pleased. The majority “wholeheartedly agreed” with the lower court that when Polk used a student’s pronouns in the classroom, she was acting as a teacher, not as a citizen.

If a student comes to school and wishes to be referred to as a specific gender, it does not follow that the student then compels a teacher’s speech.” How Polk addressed individual students within a school classroom — as opposed to public statements outside school regarding the Guidelines — was not, the court wrote, a matter of public concern. It added, “We readily decline Polk’s invitation to run the public schools.

That rationale is squarely at odds with that of other appellate circuits.

In a case addressing a professor’s compelled use of mandatory pronouns, for example, the Sixth Circuit held in Meriwether v. Hartop that a public university professor had plausibly alleged the infringement of his First Amendment rights when the university disciplined him for refusing to refer to a transgender student with “she/her” pronouns, in violation of the school’s nondiscrimination policy. Pronoun usage is a “hot issue,” the court wrote, concluding that Meriwether’s speech “waded into a matter of public concern.”

As to Polk’s free exercise claims, Judge King argued that while her complaint had alleged a religious burden, “not all burdens are unconstitutional.” He continued that the anti-harassment policy was not facially discriminatory (making no mention of religion), and Polk failed to allege any conduct or statement by the school board that evinced a “beneath-the-surface” hostility toward those holding particular religious views. Therefore, as a “facially neutral” policy under Employment Division v. Smith, the court turned to Smith’s second prong: whether said policy was generally applicable. King wrote that because the guidelines applied to all staff members equally, without a mechanism for exemption, they were “generally applicable.” A policy with such features, the majority wrote, easily satisfied rational basis review.

As a final flourish, Judge King urged that the schools’ policies were “rationally related to their obligations under Title IX, which prohibits discrimination against transgender students at school.”

For this proposition, the court cited similarly erroneous circuit precedent from 2020, Grimm v. Gloucester County School Board, in which a different panel of the Fourth Circuit found that a school board’s refusal to let a transgender student use the bathroom corresponding to her gender identity and change her school records to indicate she was “male,” violated Title IX of the Education Amendments of 1972. Title IX, a watershed in civil rights law, was passed at the insistence of the first wave of feminists who were being denied equal access to education based on their sex. The Grimm court had relied heavily on the Biden Department of Education’s interpretation of Title IX to include gender identity as well as sex. However, such inclusion is not supported by Title IX’s text, implementing regulations, or congressional record. What’s more, in 11 legal challenges to the rule across various federal circuits, Biden lost 11 times.

Judge Wilkinson rightly and “vigorously” dissented from the majority’s holding in Polk.

Wilkinson agreed that Smith remained a binding circuit precedent on free exercise claims and that the majority was correct on that narrow point alone. The decisive error, however, lay in the court’s analysis of Polk’s free speech claim.

Classifying the policy as classic compelled speech on a non-curricular matter of public concern, Wilkinson argued that the majority had erred by extending Garcetti to cover compelled ideological messaging in the classroom, thereby stripping teachers of even qualified First Amendment protection and subordinating constitutional rights to administrative convenience. That fatally broad application rendered teachers’ First Amendment rights a hollow shell.

Garcetti concerned a deputy district attorney’s internal memorandum criticizing a search warrant affidavit — an instance of official, job-required speech on a matter internal to the workplace. The Court carefully limited its holding to speech “pursuant to [an employee's] official duties.” It expressly declined to decide whether the rule would apply to “expression related to academic scholarship or classroom instruction.” Wilkinson argued that the Polk majority had ignored this limiting language and treated every utterance a teacher makes while facing students as official speech subject to total governmental control.

Pronoun usage is not like drafting a memo or grading papers, after all. It is a compelled affirmative endorsement of a contested ideological proposition: that a student’s subjective gender identity overrides biological reality. As Wilkinson observed, MCPS demanded that Polk “speak a message supportive of transgenderism” or lose her ability to teach. Citing the Supreme Court’s 2023 holding in 303 Creative v. Elenis, Wilkinson countered that such a policy resulted in textbook compelled speech, the “most serious infringement” of First Amendment rights.

Polk’s speech was non-curricular. It did not involve teaching biology, history, or literature. Rather, it followed from an administrative directive about how to address students on a matter of intense public debate. And Wilkinson wrote that because her speech touched on matters of public concern—transgender rights, parental authority, and the limits of state power over personal belief—Pickering required a balancing of the employee’s interest in speaking (or refusing to speak) against the district’s interest in efficiency and discipline.

On that balance, MCPS’ policy fell short.

On Polk’s side, the stakes were high: she was being forced to utter words that violated her deepest religious convictions and to participate in what she views as a deception about human nature. Wilkinson wrote that the Supreme Court has often recognized that religiously motivated speech occupies a special place in the constitutional order, noting that compelled speech doctrines may require heightened scrutiny in certain contexts. What’s more, Wilkinson argued, reasonable alternatives existed. Polk could have addressed students by last names only and avoided pronouns altogether. This would have satisfied the school’s interest in respectful classroom management without forcing ideological affirmation. Instead, MCPS had given “opposing beliefs of transgender rights no quarter...[seeking] to place the entire subject beyond even murmurous misgivings, not to mention open debate.”

On MCPS’s side, the stakes were relatively low: MCPS claimed the policy protected student safety and prevented discrimination. But the Guidelines were not content-neutral; rather, they privileged one side of a cultural debate. They required affirmative endorsement of gender-identity theory while silencing dissenting views. Citing Reed v. Town of Gilbert, Wilkinson wrote that this was “an egregious form of content discrimination.” And the majority’s willingness to let the state dictate “what shall be orthodox in politics, nationalism, religion, or other matters of opinion” directly contradicted the Supreme Court’s holding in West Virginia v. Barnette.

Wilkinson’s warning about the slippery slope may yet prove prescient. If Garcetti now swallows all teacher-student interaction, nothing prevents a school board from requiring teachers to affirm any number of contested propositions — on race, climate, politics, or religion. The majority of the Fourth cheered when the compelled message matched progressive orthodoxy; tomorrow, others may cheer when it fits conservative orthodoxy. The First Amendment exists to prevent the government from dominating private conscience.

In short, the Polk majority subordinated constitutional principles to policy preferences. It transformed a public-school teacher’s classroom into a state-controlled speech zone where only approved messages may be voiced. Wilkinson’s dissent preserved the First Amendment’s core promise: that no citizen can be forced to “confess by word or act their faith” in the government’s prescribed orthodoxy. By insisting that even public employees retain some sphere of conscience — especially when reasonable alternatives exist — Wilkinson upheld the constitutional heritage that the majority sacrificed. Garcetti, Wilkinson wrote, sought to clarify Pickering – not render it obsolete. And the resolution of difficult questions surrounding transgender rights should not come, as he warned, “at the expense of our constitutional heritage.”

After Wilkinson’s vehement characterization of the majority’s rationale as a “gross assault on the First Amendment,” some speculated the Supreme Court would soon be asked to take up Polk’s case. Their predictions proved true.

After the Chief Justice granted an extension on the filing of her petition for a writ of certiorari, Polk has until May 28, 2026, to file the same in full.

Sarah Parshall Perry is Vice President & Senior Legal Fellow at Defending Education.