By Brian Festa, Esq.
Vice-President & Co-Founder
We The Patriots USA, Inc.
Published January 23, 2023
Just about two weeks ago, I spoke at the school board meeting in Caldwell, Idaho, where the district is proposing a new policy that would allow children in schools to use restroom and locker room facilities that “correspond to the gender identity they consistently express at school.” It should not be surprising that in a state like Idaho, and in a county like Canyon, this policy was met with massive and stern resistance. It is estimated that nearly 1,000 people turned out for the the meeting, although only a handful of attendees were allowed to speak before Board Comrade Chair Marisela Pesina abruptly shut down the meeting while Senator Chris Trakel (R-Caldwell) was voicing his opposition to the policy, and just after students speaking in support of the policy (one curiously bearing Pesina’s surname) were permitted to speak without interruption.
While the majority speaking in opposition were concerned about boys changing in girls’ locker rooms and vice versa, my concern ran to a deeper, more fundamental problem with this policy. Even if gender-fluid locker rooms and restrooms were taken out of the equation, the policy would still stand in gross violation of the United States Constitution. At the very least, three clauses of the First Amendment are violated by the policy’s mandate that “in the course of ordinary school interactions and communication, District staff shall use the name and pronouns consistently expressed by the student at school, regardless of the student’s legal name and sex.” The first three clauses of the First Amendment, known as the “Establishment Clause”, the “Free Exercise Clause”, and the “Free Speech Clause”, respectively, read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”
A policy that forces staff—and, presumably, students—to use what is commonly known as “gender-affirming” language in schools while forbidding speech to the contrary (such as, for instance, a teacher referring to a student with a pronoun that matches his or her biological sex), is clearly violative of the Free Speech Clause. The Supreme Court has consistently held that a governmental body cannot favor certain kinds of speech over others, most recently last May in Shurtleff v. City of Boston, where the High Court unanimously ruled that the city violated the Free Speech Clause by allowing secular flags to fly over City Hall, while refusing to fly a Christian flag. Key to the decision was the fact that the flag flying program was not found to be government speech, which means that the city was not speaking itself, but giving preference to certain outside speech over others. This kind of content-based restriction on speech has long been held to run afoul of the Free Speech Clause, as has compelled speech, so it’s puzzling that Caldwell Public Schools seems to believe that such a policy would survive judicial scrutiny. Unless speech can be shown to be disruptive to learning and other school operations, the speech of staff and students alike is entitled to First Amendment protection. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). If referring to a biologically male student as “he” is considered disruptive to the school environment, we have reached a very sad state of affairs in America.
Moreover, considering that the vast majority of Idahoans (a whopping 67%, according to the Pew Research Center), are Christian, it stands to reason that a majority of the staff at Caldwell Public Schools are also Christian. It also stands to reason that a fair proportion of those Christians take their faith seriously, and therefore hold fast to the two-gender model set forth in the first book of The Bible: “And God created man to his own image: to the image of God he created him: male and female he created them.” (Genesis 1:27) By forcing a Christian teacher to address a child by a gender pronoun that does not conform to his or her biological sex (including the plurals they/them/theirs) the school district is asking the teacher to deny a core Biblical teaching in favor of a new model of sex and gender imposed by the district. This is precisely the kind of state-sponsored religious institution prohibited by the Establishment Clause. By refusing to allow Christian staff and students to address a student using his or her biologically accurate pronouns, the policy would also run afoul of the Free Exercise Clause, since Christians are bound to honor and proclaim the Biblical view of creation. To force a Christian teacher to affirm a viewpoint at odds with his or her faith is to force a teacher not only to practice a religion at odds with his or her own, but also to force the teacher to stifle the expression of his or her religious beliefs. Again, it’s somewhat baffling that any school board or its counsel would be recommending the adoption of such a policy, especially given the posture of the current Supreme Court with regard to religious liberty (take, for instance, Carson v. Makin and Kennedy v. Bremerton School District, both decided just last year).
And here’s a still more troubling thought: the school is forcing its new religion on the children. When a teacher says, in the presence of a Christian student, that his female classmate has morphed into a boy, the teacher is espousing a religious belief that is directly opposed to the Christian student’s beliefs. It is no different than allowing a teacher to say to one student that “God does not exist,” while an onlooking Christian student is forced to accept this as truth, and prohibited from voicing any opposition. This is our 2023 reality not just in Caldwell, not just in Idaho, but in public school classrooms all across the country. This is because, for the ruling class who craft public school policy and curriculum, doctrines like transgenderism and critical race theory are central tenets of their faith, a form of secular modernism that has become anything but secular. It is so important to these officials that they are willing to face the public scorn of a crowd of angry parents 1,000 strong. They are willing to risk recall votes and lost elections in November. They are willing to risk the inevitable (we promise) flood of litigation from the parents and their children who are harmed by these policies, potentially costing their cities and their taxpayers hundreds of thousands of dollars. In short, they are willing to risk anything and everything in the name of indoctrination, so they can become martyrs to a false doctrine whose primary objective is to infiltrate the minds of malleable youth in furtherance of a dark new evangelization.
Again, this is not a problem unique to Caldwell. But the takeaway here is that nowhere is safe. If this can happen in Idaho, it can happen in Texas, in Tennessee, in Florida. These are the last battlegrounds in the fight to defend our religious freedom, parental rights, and our American way of life. We The Patriots USA stands ready to defend these rights in court if necessary, not only in Idaho and Florida but also in New York and California. That’s because wherever you choose to live, work, and raise your family, you are entitled to the rights endowed to you by your Creator, and enshrined in our beautiful Constitution. Be bold, be brave, and rest calm in the knowledge that “when you stand up to tyrants, we stand up for you.”
We The Patriots USA, Inc. is a public interest nonprofit law firm headquartered in Caldwell, Idaho. We rely exclusively on donations from our supporters to continue our efforts. Please consider a donation today at wethepatriotsusa.org/donate.