Argument

Question 1

legal cases and factual materials not cited by either party

Answer 1

Amici’s brief discusses a federal district court’s opinions in Kluge v. Brownsburg Cmty. Sch. Corp., No. 19-CV-2462 (S.D. Ind.), which addresses many of the same claims presented here. The brief also introduces the Brief of Amici Curiae Medical, Public Health, & Mental Health Orgs. that was relied on heavily by the Fourth Circuit in its decision in Grimm v. Gloucester County School Board, which held that a school’s discriminatory policy for transgender students violated Title IX and the Equal Protection Clause

Question 2

Intro Free Speech

Answer 2

Plaintiffs’ use of students’ pronouns is curricular speech, and where the school board has adopted a policy requiring use of transgender students’ pronouns in support of legitimate pedagogical concerns—concerns that Amici outline in Part I of the brief—Plaintiffs’ speech is not protected.

Question 3

Intro Free Exercise

Answer 3

The Nondiscrimination Policy is neutral and generally applicable, so it does not violate Plaintiff’s free exercise rights, and even under VA’s statutory free exercise protection, it serves a compelling interest in protecting the welfare and educational interests of transgender and gender expansive students, as detailed in Amici’s brief.

Question 4

Intro Due Process

Answer 4

Amici’s brief also aids this Court in addressing Plaintiffs’ due process claims, in part by addressing some of this Court’s questions from the prior hearing, in particular explaining why the policy does not benefit transgender and gender expansive students over other students, but instead ensures that all students are equally addressed consistent with their gender identity.

Question 5

Amici

Answer 5

Equality Loudoun, Equality Virginia, Side by Side, He, She, Ze and We

Question 6

Most important Am.Jur. § 3 factor

Answer 6

is “the usefulness of information and argument presented by the amicus curiae to the court.”

Question 7

Jones v. Caldwell discussion of the Am.Jur. factors

Answer 7

only 1) defines amici as those who participate in a judicial proceeding to assist the court by giving information (4 Am. Jur. 2d, Amicus Curiae § 4); and 2) explains that “[a]ppearance as an amicus curia is a matter of privilege and may be granted where the party has no right to intervene.”

Question 8

Facts of Jones v. Caldwell

Answer 8

In Jones, the alleged amici were seeking to avoid becoming a party to the proceedings, as the court was considering a Motion for Interpleader filed by Defendants. The court held the alleged amici had a direct interest in the settlement proceedings at issue in the case, so participation as amici would not be appropriate, and the alleged amici in Jones had earlier asked for a stay in the litigation based on their direct financial interest

Question 9

Gender dysphoria definition

Answer 9

“a condition that is characterized by debilitating distress and anxiety resulting from the incongruence between an individual’s gender identity and birth-assigned sex.”

Question 10

Harms of prejudice and discrimination to trans students

Answer 10

1) exacerbate gender dysphoria; 2) expose transgender individuals to harassment and abuse; 3) stigmatize transgender students; and 4) harm adolescent social and emotion development, with lifelong repercussions

Question 11

Nondiscrimination Policy applies equally because…

Answer 11

First, the policy simply doesn’t apply to any declaration of name/pronouns—it is limited to names and pronouns connected to students’ gender identity. Second, the policy requires the student’s gender identity to be consistently asserted. This does not give transgender or gender-expansive students the right to arbitrarily change their names or pronouns, it puts them on equal footing with other students who already expect that school staff with address them consistently with their gender identity.

Question 12

Does Amici need to be disinterested?

Answer 12

“there is certainly no requirement that amici be totally disinterested” and courts consider “the strength of the information and argument presented by the potential amicus curiae’s interests.”

Question 13

Boring holding

Answer 13

a teacher’s curricular speech is not speech by a private citizen on a matter of public concern as a matter of law

Question 14

curricular speech definition

Answer 14

is “school-sponsored expression bearing the imprimatur of the school,” “supervised by faculty members and designed to impart particular knowledge to the students.” Lee

Question 15

Curricular speech: what kind of message?

Answer 15

school should be able to control classroom speech that imparts particular knowledge or “convey a specific message or information to students.” It doesn’t matter if the message relates to the topic of instruction, “but could instead constitute information on social or moral values that the teacher believes the students should learn or be exposed to.”

Question 16

Defendant’s interest in Nondiscrimination Policy

Answer 16

“providing an equitable, safe and inclusive learning environment” for all students at Loudoun County schools

Question 17

Examples of implications of Pls’ free speech argument

Answer 17

A teacher could advocate to students that they should use illegal drugs, because the teacher believes that drug use leads to enlightenment; a teacher could refuse to teach about the 19th Amendment, because they don’t believe that women should have the right to vote; a geography teacher could insist on teaching that the Earth is flat.

Question 18

Hazelwood standard

Answer 18

schools do not offend the First Amendment by exercising control over school-sponsored speech “so long as their actions are reasonably related to legitimate pedagogical concerns”

Question 19

Church of the Lukumi neutrality standard

Answer 19

“the object of a law is to infringe upon or restrict practices because of their religious motivation”

Question 20

Va. Code § 57-2.02(E)

Answer 20

statute cannot be applied to prevent a governmental entity from “maintaining health, safety, security or discipline.”

Question 21

Boyertown compelling governmental interest findings

Answer 21

Schools have a “compelling interest in protecting the physical and psychological well-being of minors.” Discrimination at school creates particularly severe risks for transgender students because “[m]istreatment of transgender students can exacerbate gender dysphoria, lead to negative educational outcomes, and precipitate self-injurious behavior.” In short, “[w]hen transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated.”

Question 22

due process standard

Answer 22

1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; and 2) authorizes or encourages arbitrary and discriminatory conduct

Question 23

Nondiscrimination Policy triggers to avoid trapping staff

Answer 23

First, a student or parent must request the use of a name or pronouns that are consistent with their gender identity—teachers do not need to divine on their own that a student is gender expansive. Second, the policy prohibits staff from intentionally and persistently using the wrong name and pronouns, not “inadvertent slips.”

Question 24

due process standard for proscribed conduct

Answer 24

court must measure the proscribed conduct by the “common understanding and practices”

Question 25

Model Policies’ definition of gender expansive

Answer 25

Terms that convey a wider, more inclusive range of gender identity and/or expression than typically associated with the social construct of a binary (two discrete and opposite categories of male and female) gender system

Question 26

due process standard for crafting civil statutes

Answer 26

Courts require a lower degree of precision in crafting civil statutes, Manning v. Caldwell, 930 F.3d 264, 272 (4th Cir. 2019), particularly for school administrators who have “greater leeway when crafting school policy than legislatures.” Hardwick ex. rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013)

Question 27

Hardwick facts

Answer 27

Upheld dress code challenge on vagueness grounds by student who was prohibited from wearing clothing displaying the confederate flag. Policy prohibited offensive language, and obscene or derogatory symbols—student argued it wasn’t clear that the flag was prohibited under the dress code, but the court held that she had been informed on multiple occasions that it was prohibited, and the school officials had therefore interpreted the dress code for her and she couldn’t claim to be unaware.

Question 28

Model Policies sincerity standard

Answer 28

school administrators may consider whether there has been “uniform assertion of such an identity, indication that the identity is sincerely held as part of the student’s core identity, or that the student is not asserting such an identity for an improper purpose.” The fact that students do not need to present medical or legal documents still requires “more than a casual declaration of gender identity.”

Question 29

Bostock on sex discrimination and gender identity discrimination

Answer 29

“[T]o discriminate against [people] for being . . . transgender, the employer must intentionally discriminate against individual men and women in part because of sex.”

Question 30

Facts about sexual assault

Answer 30

First, the assault occurred in May; the Nondiscrimination Policy was not approved until August, so the policy was not even in place when the assault occurred.
Second, reports about the gender identity of the student who committed the assault are all from third parties, and the most credible sources indicate that the student was not transgender or gender expansive. 1) email from Superintendent Ziegler describes the assailant as a “male student.” 2) Superintendent explained that comments to school board because he thought the question was about incidents involving transgender and gender-fluid students.

Question 31

Other Am.Jur. § 3 factors

Answer 31

“whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts or data that are not to be found in the parties’ briefs,” as well as “the strength of the information and argument presented by the potential amicus curiae’s interests.”

Question 32

Pickering-Connick standard

Answer 32

balance “‘the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”

Question 33

Garcetti standard

Answer 33

“when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Question 34

Smith standard

Answer 34

no free exercise right to act in violation of a neutral and generally applicable laws, if no facts showing that it targeted or otherwise was motivated by an animus toward any particular religion or religious belief

Question 35

Va. Code § 57-2.02(B) standard

Answer 35

Cannot burden religious exercise unless policy is “(i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.”

Question 36

Equality Loudoun

Answer 36

nonprofit organization that advocates, educates, defends, and builds community to support lesbian, gay, bisexual, transgender, and queer (“LGBTQ+ ”) equality in Loudoun County (and advocated for passage of Nondiscrimination Policy)

Question 37

Equality Virginia

Answer 37

leading advocacy organization in Virginia seeking equality for LGBTQ people

Question 38

Side by Side

Answer 38

largest and oldest organization in Virginia serving LGBTQ+ youth

Question 39

He She Ze and We

Answer 39

statewide nonprofit organization that provides peer to peer support for caregivers of transgender and non-binary youth

Question 40

ACLU & ACLU of VA

Answer 40

defend the principles of liberty and equality embodied in the Constitution, and advocate for First Amendment liberties as well as equal rights for LGBTQ people

Question 41

Treating students consistently with their gender identity is …

Answer 41

crucial for their mental health and wellbeing, has been shown to reduce the amount of harassment they face in school, and in turn improves their academic performance

Question 42

gender identity

Answer 42

a ‘deeply felt, inherent sense’ of their gender

Question 43

Social gender transition

Answer 43

to steps that transgender individuals take to present themselves as being the gender they most strongly identify with (name, pronouns, clothing, sex-segregated spaces)

Question 44

treatment protocols for gender dysphoria

Answer 44

“provide that transgender individuals should live all aspects of their life in the gender with which they identify” AAP Amicus

Question 45

study on proper pronoun use …

Answer 45

improved their mental health–led to a fifty-six percent decrease in suicide attempts and a twenty-nine percent decrease in suicidal thoughts (Br. of Amici Curiae Nat’l Medical & Mental Health Orgs. in Meriwether )

Question 46

Stat of transgender students who report being bullied and harassed by students, teachers, and staff at their school

Answer 46

one third

Question 47

percent of transgender students leave school early because of harassment

Answer 47

15%

Question 48

percent of transgender individuals who were harassed or bullied by teachers in either K-12 schools or higher educational settings who attempt suicide

Answer 48

59%–percent rose dramatically when teachers were the reported perpetrators of bullying and harassment

Question 49

Merriam-Webster dictionary on they

Answer 49

that “they has been in consistent use as a singular pronoun since the late 1300s”

Question 50

Lee standard

Answer 50

“when a First Amendment free speech dispute involves a teacher-employee who is speaking within the classroom, the determination of whether her speech involves a matter of public concern is dependent on whether or not the speech is curricular.”

Question 51

Plaintiffs’ accommodation is not narrowly tailored because…

Answer 51

“Not only would” Plaintiffs’ proposal “not serve the compelling interest that the School District has identified here, it would significantly undermine it.” Boyertown