Eugene Volokh (UCLA; Google Scholar), Do Religious Schools Have a Right to Exemption from State's Pronoun Policies?:

From Friday's opinion by Judge Daniel D. Domenico (D. Colo.) in Darren Patterson Christian Academy v. Roy … :

"[T]he First Amendment protects an individual's right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided and likely to cause anguish or incalculable grief. 303 Creative, LLC v. Elenis (2023). "Generally, too, the government may not compel a person to speak its own preferred messages." Indeed, the Court held in 303 Creativethat Colorado could not compel a wedding-website designer to create websites that did not discriminate on bases similar to those at issue in this case.

In an even more on-point case, the Sixth Circuit held that a public university's requirement that professors use a student's preferred pronouns in the classroom amounted to a Free Speech violation. Meriwether v. Hartop (6th Cir. 2021). That case involved a professor plaintiff at a public university who declined to use a student's preferred pronouns, instead seeking to refer to that student in name only while referring to other students with pronouns corresponding to their biological sex. That plaintiff faced even more obstacles than Plaintiff would here in proving a Free Speech claim given the various doctrines limiting the ability of public-school teachers to bring First Amendment claims. Even still, the Sixth Circuit held that compelling such speech violated the professor's free-speech free exercise rights. [The words "free exercise" seem to have been erroneously included here by the court. -EV]

The Ninth Circuit has also arrived at a similar conclusion in a related context. They held that an Oregon anti-discrimination law requiring a "natural-born-female-only" beauty pageant to allow transgender contestants violated the pageant's expressive free-speech rights. Green v. Miss United States of Am., LLC (9th Cir. 2022). As the Ninth Circuit noted, this accorded with its "long-standing hesitation to enforce anti-discrimination statutes in the speech context."

Given these authorities and Defendants' failure to rebut the substance of this claim at all, the Court finds at this time that Plaintiff is likely to succeed on the merits of its Free Speech claim at least as to part of its policies. The anti-discrimination provisions at issue here mirror those found in 303 Creative, Meriwether, and Green. And, if applied to Plaintiff in the ways it credibly fears (i.e., at least as to its policy regarding pronoun usage), those anti-discrimination provisions would likely be unconstitutional, as the similar provisions were found to be in the aforementioned cases.

Reuters, Colorado Can't Bar Christian School From Preschool Program Over LGBTQ Stance, Judge Says:

A federal judge has blocked Colorado from excluding a Christian private school from its taxpayer-funded universal preschool program due to the school's requirements that employees share its faith and that students use bathrooms and pronouns corresponding to their biological sex.

U.S. District Judge Daniel Domenico on Saturday issued a preliminary injunction blocking the state from preventing Darren Patterson Christian Academy from participating in the program or punishing it for religious policies that may run afoul of the state's non-discrimination requirements. …

 Domenico said the school credibly feared enforcement, and that the requirements when applied to hiring teachers would interfere with its policy of only hiring born-again Christians who abstain from sex outside the context of marriage between a man and a woman.

The judge, an appointee of Republican former President Donald Trump, said requiring the school to also use a student's or employee's preferred pronouns as a condition of participating in the program would likely also violate its free speech rights.

The school had based its internal policies around the biological sex of students and staff, citing its religious belief that there are "two unique, immutable sexes," male and female.

Alliance Defending Freedom, CO School Free to Participate in Universal Preschool Program Consistent With Religious Beliefs

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