Amicus Curiae Brief — Kimberly Ann Polk, Petitioner v. Montgomery County Public Schools, et al.

No. 26-8

In the Supreme Court of the United States

__________

KIMBERLY ANN POLK,

v.

Petitioner,

MONTGOMERY COUNTY PUBLIC SCHOOLS; MONTGOMERY COUNTY BOARD OF EDUCATION; SHEBRA L. EVANS,

MONIQUE FELDER, LYNNE HARRIS, GRACE RIVERAOVEN, KARLA SILVESTRE, REBECCA SMONDROWSKI,

BRENDA WOLFF, AND JULIE YANG, individually & in

their official capacities as Members of the Montgomery County Board of Education,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

July 31, 2026

i

QUESTION PRESENTED

After Petitioner Kimberly Polk completed her first

year of substitute teaching for Maryland’s

Montgomery County Public Schools (“MCPS”),

Respondents required her to confirm that she would

comply with MCPS’s Guidelines for Student Gender

Identity. But Polk’s deeply held Christian beliefs

prevented her from complying with the Guidelines’

requirements (1) compelling her to use “preferred”

pronouns inconsistent with a student’s biological sex,

and (2) prohibiting her from telling parents that the

school was helping their children transition genders.

This brief addresses question 2 of the Petition’s

questions presented:

Do public schools violate the Free Speech Clause

when they compel objecting teachers to adhere to such

a school policy?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 4

I. USE OF STUDENTS’ PREFERRED

PRONOUNS IS NOT ORDINARILY

PART OF A TEACHER’S JOB DUTIES .......... 4

II. THIS COURT SHOULD ANTICIPATE

A CIRCUIT SPLIT ON WHETHER

PRONOUN CHOICE IS PART OF

TEACHERS’ DUTIES ....................................... 6

A. The Fourth Circuit Held That Using

Students’ Preferred Pronouns Is

Part of Teachers’ Job Duties ....................... 7

B. The Eleventh Circuit Held That

Using Pronouns That Correspond

to Natal Sex Is Part of Teachers’

Job Duties .................................................... 8

C. The Virginia Supreme Court Has

Held That Use of Preferred

Pronouns Is Not Within Teachers’

Duties Under Garcetti, Showing

That a Circuit Split Is Likely to

Develop on the Federal Level .................... 10

III.WHETHER TO USE PRONOUNS

THAT DO NOT CORRESPOND TO

NATAL SEX IS A MATTER OF

PUBLIC CONCERN ....................................... 12

iii

IV. STATE INTERESTS CANNOT

JUSTIFY COMPELLING SPEECH—

PARTICULARLY SPEECH THAT

WOULD VIOLATE RELIGIOUS

BELIEFS ......................................................... 14

CONCLUSION .......................................................... 16

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Abrams v. United States, 250 U.S. 616 (1919)............ 8

Connick v. Myers, 461 U.S. 138 (1983) ........... 4, 12, 13

Emp’t Div., Dep’t of Hum. Res. of Ore. v. Smith,

494 U.S. 872 (1990) ................................................ 15

Garcetti v. Ceballos,

547 U.S. 410 (2006) ........................ 2, 3, 4, 5, 6, 7, 11

Givhan v. W. Line Consol. Sch. Dist.,

439 U.S. 410 (1979) ........................................ 4, 9, 13

Janus v. Am. Fed. of State, Cnty., and Mun.

Emps., Council 31, 585 U.S. 878 (2018) ...... 4, 10, 13

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ........................................ 4, 9, 12

Lane v. Franks, 573 U.S. 228 (2014) ................... 3, 5, 7

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021) ........................ 6, 11, 13

Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) ...................................... 1, 12, 14

Rankin v. McPherson, 483 U.S. 378 (1987) .......... 4, 13

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ............................................ 7, 12

Vlaming v. W. Point Sch. Bd.,

895 S.E.2d 705 (Va. 2023) .................. 3, 6, 10, 11, 14

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................ 4, 11, 14, 15

Wood v. Fla. Dep’t of Educ.,

142 F.4th 1286 (11th Cir. 2025) ................ 3, 8, 9, 11

v

Statutes

Fla. Stat. § 1000.071 .................................................... 8

Other Authorities

Annelou L. C. de Vries & Peggy T. Cohen-Kettenis,

Clinical Management of Gender Dysphoria in

Children and Adolescents: The Dutch Approach,

59 J. Homosexuality 301 (2012) ............................ 13

James M. Cantor, Transgender and Gender

Diverse Children and Adolescents:

Fact-Checking of AAP Policy,

46 J. Sex & Marital Therapy 307 (2019) ............... 14

Thomas D. Steensma et al., Factors Associated

with Desistence and Persistence of Childhood

Gender Dysphoria: A Quantitative Follow-Up

Study, 52 J. Am. Acad. Child & Adolescent

Psych. 582 (2013) ................................................... 14

Constitutional Provisions

Va. Const. art. I, § 12 ................................................. 10

1

INTEREST OF AMICUS CURIAE 1

The Manhattan Institute (MI) is a nonprofit policy

research foundation that works to keep America and

its great cities prosperous, safe, and free. MI develops

and disseminates ideas that foster individual freedom

and economic choice across multiple dimensions. To

that end, it produces scholarship and files briefs opposing regulations that violate constitutionally protected

liberties, including in the marketplace of ideas.

This case concerns MI because the government can

skew the marketplace of ideas when it favors one side

of the debate over a controversial idea, such as gender

identity. Kimberly Polk’s case merits the Court’s review because it is unclear how current doctrine should

deal with the issues she raises.

SUMMARY OF ARGUMENT

“[T]eachers may [not] constitutionally be compelled

to relinquish the First Amendment rights they would

otherwise enjoy as citizens to comment on matters of

public interest in connection with the operation of the

public schools in which they work.” Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968). Instead, courts must

balance the employee’s interest in engaging in that

speech and the employer’s interest in preventing it. Id.

Ignoring that rule, the Montgomery County Board of

Education (the “Board”) promulgated guidelines that

compelled its teachers to endorse one side of a matter

of public interest by using students’ preferred names

1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any

party’s counsel; no person or entity other than amicus funded its

preparation or submission.

2

and pronouns, even when those differed from students’

natal sex. App. 4a–6a.

Kimberly Ann Polk, the Petitioner here, worked as

a substitute teacher for Mongomery County Public

Schools (MCPS). She is a Christian whose understanding of her religion and the Bible’s view of sex and gender prevents her from endorsing the MCPS’s ideology.

App. 7a. After Polk’s sincere efforts to design a mutually satisfactory accommodation were rebuffed, App.

7a–8a, she was forced unjustly to choose between her

faith and the MCPS’s contentious ideological commitments. She chose her faith. App. 8a.

When Polk sought to vindicate her constitutional

right not to endorse the MCPS’s message, the divided

panel below rejected her claim because, it reasoned,

using students’ preferred pronouns and the names

they have chosen for themselves—without their parents’ consent—fell within Polk’s ordinary job duties.

App. 31a–32a. The lower court knew that was the case

because the Board told it so. Id. And this Court has

held that teachers’ First Amendment protections do

not extend to speech made as part of their ordinary job

duties. Garcetti v. Ceballos, 547 U.S. 410, 423 (2006).

Accordingly, the court below declined to apply Pickering balancing and affirmed the district court’s dismissal of Polk’s claims under the Free Speech Clause and

Free Exercise Clause. App. 30a–32a, 37a–38a.

But the court below misapplied Garcetti. Garcetti

does not instruct courts to determine whether the job

duties of a plaintiff include certain speech. If it did, the

public employer could, like MCPS did in this case, require affirmation of any views it likes by including

them in its employees’ job descriptions. Garcetti explicitly cautions courts against taking employers at their

3

word: “[T]he listing of a given task in an employee’s

written job description is neither necessary nor sufficient to demonstrate that conducting the task is within

the scope of the employee’s professional duties for First

Amendment purposes.” Garcetti, 547 U.S. at 424–25.

Instead, Garcetti requires that courts ask whether certain speech is “ordinarily within the scope of an employee’s duties,” Lane v. Franks, 573 U.S. 228, 240

(2014)—not this particular employee as dictated by

this particular employer.

The Fourth Circuit has thus opened a loophole for

states to force their teachers to endorse all sorts of controversial ideas just by including them in guidelines or

legislation as part of teachers’ job duties. The Eleventh

Circuit opened the same loophole on the opposite side

of this issue, holding that a Florida law banning the

use of pronouns that do not correspond to natal sex

was constitutional because it regulated speech within

the scope of teacher’s job duties. Wood v. Fla. Dep’t of

Educ., 142 F.4th 1286, 1290–92 (11th Cir. 2025).

No circuit court has yet closed this loophole, but the

Virginia Supreme Court has. See Vlaming v. W. Point

Sch. Bd., 895 S.E.2d 705, 741–42 (Va. 2023) (holding

that a teacher could bring a claim under the state constitution’s freedom of religion provisions that mandatory pronoun use violated his sincerely held religious

beliefs). And it is probably only a matter of time before

a federal circuit court sees the wisdom of Virginia’s interpretation of Garcetti. This Court need not wait for

that circuit split to develop. It should get ahead of it by

making clear that, under Garcetti, referring to stu-

4

dents by pronouns that do not correspond to their natal sex is not part of a teacher’s ordinary job duties.

Once it does so, the rest of Polk’s case is clear: using

pronouns that do not correspond to natal sex implicates a matter of public concern, see Janus v. Am. Fed.

of State, Cnty. & Mun. Emps., Council 31, 585 U.S.

878, 913–14 (2018) (identifying “gender identity” as a

“matter of profound value and concern to the public”),

and MCPS and the Board cannot justify the compelled

speech that adherence to its guidelines entails. W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(“If there are any circumstances which permit an exception [to the unconstitutionality of compelled

speech], they do not now occur to us.”).

ARGUMENT

I. USE OF STUDENTS’ PREFERRED PRONOUNS IS NOT ORDINARILY PART OF A

TEACHER’S JOB DUTIES

Pickering balancing applies unless a public employee “is simply performing his or her job duties.”

Garcetti, 547 U.S. at 423. But the location where the

speech occurs is not dispositive in determining

whether the speech occurred as part of performance of

job duties. See, e.g., Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 530 (2022) (coach’s prayers on schoolowned field); Rankin v. McPherson, 483 U.S. 378, 386–

87 (1987) (statement made during office conversation);

Connick v. Myers, 461 U.S. 138, 149 (1983) (questionnaire distributed within the office); Givhan v. W. Line

Consol. Sch. Dist., 439 U.S. 410, 411–13, 415–16

(1979) (teacher’s speech in principal’s office).

Neither is the job description or requirements as

written by the employer dispositive of the job-duties

5

question: “[T]he listing of a given task in an employee’s

written job description is neither necessary nor sufficient to demonstrate that conducting the task is within

the scope of the employee’s professional duties for First

Amendment purposes.” Garcetti, 547 U.S. at 424–25.

If the public employer could write whatever it wanted

into job descriptions to avoid Pickering balancing, it

could bypass any First Amendment challenge by including overbroad descriptions of job duties. See id.

Instead, speech is a function of a public employee’s

job duties only when the speech “owes its existence to

a public employee's professional responsibilities.” Id.

at 421. “The critical question under Garcetti is

whether the speech at issue is itself ordinarily within

the scope of an employee’s duties,” Lane, 573 U.S. at

240—not whether this employer decides to put it

within the scope of this employee’s duties. An employer

cannot redefine an employee’s job duties to include engaging in speech that would otherwise be protected because engaging in such speech is not “ordinarily

within the scope of an employee’s duties.” If it could,

there would be no limit to its ability to dictate employees’ speech, making Garcetti an impossibly high

threshold and Pickering a dead letter.

Polk’s job duties as a teacher certainly include addressing her students because doing so is “ordinarily

within the scope” of a teacher’s job duties. But a

teacher’s job duties do not “ordinarily” include a requirement to address students by pronouns that do not

correspond to their natal sex and names that are different from those by which their parents registered

them for school. Even in Montgomery County, a requirement to do so was codified in the Board’s guidelines only in 2019, App. 4a, and substitute teachers

6

were required to affirm that they would comply with

those guidelines beginning only in 2022, after Polk had

begun working in the district, App. 6a–7a.

Dictating the precise way in which Polk ought to

refer to students, as MCPS sought to do, constitutes an

overbroad employer-defined list of professional responsibilities against which Garcetti cautioned. Garcetti, 547 U.S. at 424–25. So does limiting all of Polk’s

discretion by refusing reasonable accommodation requests. See App. 7a–8a. The district has effectively rewritten Polk’s job description to compel her speech in

the classroom as it relates to the issue of gender ideology. Because teachers’ choice of pronouns is not “ordinarily” within the scope of their job duties, Garcetti

poses no bar to Polk’s constitutional claim.

II. THIS COURT SHOULD ANTICIPATE A CIRCUIT SPLIT ON WHETHER PRONOUN

CHOICE IS PART OF TEACHERS’ DUTIES

Referring to one’s students by specific pronouns has

not “ordinarily” been a part of a teacher’s job duties.

Yet two circuit courts have concluded that it is: the

Fourth Circuit here and the Eleventh Circuit in Wood.

Although no circuit court has yet held that the use

of pronouns does not fall within a teacher’s job duties,

a split is likely to develop. First, the Sixth Circuit has

already held that such use does not fall within a college

professor’s duties. Meriwether v. Hartop, 992 F.3d 492,

504–06 (6th Cir. 2021). Second, the Virginia Supreme

Court has held that pronoun use does not fall within a

teacher’s duties. Vlaming, 895 S.E.2d at 741–42. This

Court should grant cert. here to anticipate that split

and decide the question in favor of the view that use of

pronouns is not part of a teacher’s job duties.

7

A. The Fourth Circuit Held That Using Students’ Preferred Pronouns Is Part of

Teachers’ Job Duties

In this case, a divided panel of the Fourth Circuit

affirmed the district court’s conclusory determination

that “[w]hen Polk uses pronouns to refer to students in

the classroom setting, she is acting as a teacher, not as

a citizen.” App. 31a–32a. The court concluded that referring to students by their preferred names and pronouns was part of Polk’s job description because the

Board-written guidelines said so. App. 31a.

But if the constitutionality of the guidelines was at

issue, then the guidelines could not decide for themselves that they were constitutional. If challenged employer-written guidelines could define any speech as

part of one’s job duties, the employer could avoid any

First Amendment claim. Garcetti, 547 U.S. at 424–25.

A school district might state in its guidelines that not

wearing black armbands to express opposition to a war

is part of its teachers’ job duties—perhaps because it

is the teacher’s duty is to support patriotism and civic

unity—and the Fourth Circuit would apparently accept it as such. But see Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 505–11 (1969).

Instead, some independent test is needed that

doesn’t simply restate how a public school defines a

teacher’s job duties. The lower court should have determined “whether the speech at issue is itself ordinarily within the scope of an employee’s duties,” without

regard to whether this particular employer defined it

as such. Lane, 573 U.S. at 240. As this brief has already demonstrated, a specific kind of pronoun usage

is not ordinarily within the scope of a teacher’s duties

absent a school district’s guidance to the contrary. To

8

mandate one kind of pronoun use is to mandate forced

speech that takes a side on the contentious issue of

gender identity—just as a school banning war-protesting armbands to support patriotism and civic unity

took a side on a controversial issue.

The Court should use this case to clarify that Garcetti does not block a constitutional claim just because

the defendant says it does.

B. The Eleventh Circuit Held That Using Pronouns That Correspond to Natal Sex Is

Part of Teachers’ Job Duties

As is the case for many Free Speech claims, everyone benefits from more robust freedom of speech. Cf.

Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting) (“[T]he ultimate good desired

is better reached by free trade in ideas.”). Those teachers with views diametrically opposed to Polk’s and

aligned with MCPS’s might soon find their own speech

tightly controlled in states and school districts with

different ideologies.

Such was the case for Katie Wood, a transgender

teacher in Florida. Wood, 142 F.4th at 1288. State law

banned Wood from using certain preferred pronouns,

requiring instead the use of those that corresponded

with Wood’s natal sex, which was male. Id.; Fla. Stat.

§ 1000.071(3). A divided panel of the Eleventh Circuit

vacated a preliminary injunction in Wood’s favor because that use of pronouns was part of a teacher’s job

duties. Wood, 142 F.4th at 1290–92.

That court held broadly that “when a public-school

teacher speaking in the course of performing her job—

i.e., speaking to her class in her classroom during class

hours—she does so pursuant to her official duties and

9

therefore speaks as a government employee, not a citizen.” Id. at 1291–92 (citation omitted). But see id. at

1299–1301 (Jordan, J., dissenting); Kennedy, 597 U.S.

at 530; Givhan, 439 U.S. at 411–13, 415–16.

The Eleventh Circuit’s distinguishing of Wood’s circumstances from those of Joseph Kennedy, the high

school coach in Kennedy, only begged the question. See

Wood, 142 F.4th at 1292–93. Each of the court’s descriptions of Kennedy that ostensibly made his case

different from Wood’s—Kennedy was speaking privately when he prayed; he was not “engaged in speech

. . . the District paid him to produce” (quoting Kennedy,

597 U.S. at 530); and he prayed on his own time—could

describe Wood had the panel not declared as self-evident that they did not.

That Kennedy was speaking privately is not a factual distinction; it was this Court’s legal holding based

on the facts of that case by analogy to Garcetti and

Lane. Kennedy, 597 U.S. at 528–30. The Court knew

that Kennedy’s speech was “off the clock” and offered

within discretionary time permitted by the school—the

Wood court’s two other distinctions, Wood, 142 F.4th

at 1293—only because it inquired into his actual job

responsibilities based on the activities of other

coaches. Contrast Kennedy, 597 U.S. at 527, 530 (noting with citation to record that “coaches were free to

attend briefly to personal matters” during the time

that Kennedy prayed) with Wood, 142 F.4th at 1293

(assuming without citation to record that, while in the

classroom, “neither [Wood] nor her students were remotely at liberty to do whatever they wanted”).

The Court should use this case to reiterate that

Garcetti demands a fact-intensive inquiry that cannot

be resolved with mere conclusory assertions that eve-

10

rything that occurs in the classroom is ordinarily

within the scope of a teacher’s job duties.

C. The Virginia Supreme Court Has Held

That Use of Preferred Pronouns Is Not

Within Teachers’ Duties Under Garcetti,

Showing That a Circuit Split Is Likely to

Develop on the Federal Level

In contrast to the Fourth Circuit and Eleventh Circuit, the Virginia Supreme Court held that Garcetti

should not apply at all, or at least should apply differently, in a compelled-speech case like one that requires

a teacher to use students’ preferred pronouns.

Vlaming, 895 S.E.2d at 741 (citing Janus, 585 U.S. at

908). The court also held that an employer could not

mandate as an “official duty” an employee’s adherence

to an ideological viewpoint such as belief in gender

identity distinct from natal sex. Id. at 741–42.

The court noted that, in applying the free speech

provisions of the Virginia Constitution, Va. Const. art.

I, § 12, it was not bound by this Court’s interpretation

of the U.S. Constitution’s Free Speech Clause.

Vlaming, 895 S.E.2d at 737. But it concluded that this

Court’s interpretation of teachers’ free speech clauses

would protect the teacher’s right not to be compelled to

use students’ preferred pronouns anyway. Id.

It held so because Garcetti, unlike Vlaming and

this case, did not involve compelled speech, id. at 741,

which is “more pernicious than silencing dissent,” id.

at 738. When compelling speech, the state can compel

voicing an ideological viewpoint, and “no matter how

acceptable to some, such interest cannot outweigh an

individual’s First Amendment right to avoid becoming

the courier for such message.” Id. at 742 (quoting

11

Wooley v. Maynard, 430 U.S. 705, 717 (1977)). Therefore, “[t]he School Board cannot avoid this constitutional prohibition by simply declaring it Vlaming’s ‘official duty’ to courier the School Board’s ideological

view of gender identity.” Id. Moreover, the speech at

issue in Garcetti was “routine,” unlike the use of pronouns that do not correspond to natal sex, which is “an

ideological topic that has engendered fierce public debate.” Id. at 741. The court also noted that Garcetti itself cautioned against assuming that “all aspects of

‘classroom instruction’” were part of a teacher’s job duties. Id. at 742 (quoting Garcetti, 547 U.S. at 425). Contra Wood, 142 F.4th at 1291–92.

No federal circuit has yet adopted the Virginia Supreme Court’s interpretation. The Sixth Circuit held

that pronoun use was not part of a professor’s official

duties, but its reasoning relied on the academic freedom enjoyed by college professors (and not by teachers

outside of higher education). Meriwether, 992 F.3d at

504–06. Still, the Virginia Supreme Court quoted Meriwether approvingly in the context of a high school

teacher’s discretion over a noncurricular decision like

pronoun usage, Vlaming, 895 S.E.2d at 741–42, 742

n.34, and it is likely only a matter of time before a federal circuit court comes to the same conclusion.

This Court should anticipate that split. And, when

it does so, it should adopt the Virginia Supreme

Court’s interpretation of Garcetti. By applying Garcetti

to compelled speech, the Fourth Circuit effectively permitted states to compel teachers to affirm all sorts of

beliefs just by including them in guidelines to which

teachers must agree as a condition of employment.

App. 4a–6a. But see Barnette, 319 U.S. at 642 (“If there

is any fixed star in our constitutional constellation, it

12

is that no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion or force citizens to confess by

word or act their faith therein.”); see also Tinker, 393

U.S. at 506 (“It can hardly be argued that either students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse

gate.”); Kennedy, 597 U.S. at 527 (quoting Tinker).

The Court should confirm that a state cannot get

around these important protections against compelled

speech for state employees just by requiring affirmation of controversial ideologies in their job guidelines.

III. WHETHER TO USE PRONOUNS THAT DO

NOT CORRESPOND TO NATAL SEX IS A

MATTER OF PUBLIC CONCERN

Once a public employee clears the Garcetti threshold, as the Court should hold Polk has done in this

case, the employee must show that her speech was on

a matter of public concern. Pickering, 391 U.S. at 568.

At that point, the state must prove that its interest in

regulating that speech outweighs the employee’s First

Amendment rights. Id.; accord Kennedy, 597 U.S. at

531–32 (clarifying that clearing the first prong of Pickering shifts the burden to the state).

Polk’s use or nonuse of pronouns that did not correspond to students’ natal sex was speech on a matter

of public concern. “Whether an employee’s speech addresses a matter of public concern must be determined

by the content, form, and context of a given statement,

as revealed by the whole record.” Connick, 461 U.S. at

147–48. And what one might think of Polk’s speech

does not matter: “The inappropriate or controversial

character of a statement is irrelevant to the question

13

whether it deals with a matter of public concern.” Rankin, 483 U.S. at 387. On the contrary, controversial issues are precisely the sort of issues that tend to concern the public. Finally, the speech must address a

matter of public concern, but the speech itself can occur in private. See, e.g., Givhan, 439 U.S. at 415–16.

The record here shows that the “content, form, and

context” of Polk’s refusal to use preferred pronouns regarded a matter of public concern. Connick, 461 U.S.

at 147. Namely, her refusal was “based on her understanding of her Christian religion and the Holy Bible.”

App. 7a (quoting Complaint ¶ 31). The use of pronouns

that do not correspond to a child’s natal sex ipso facto

affirms the ideological view that children can have a

gender different from their natal sex. See, e.g., Meriwether, 992 F.3d at 508 (“Pronouns can and do convey

a powerful message implicating a sensitive topic of

public concern.”). Polk’s religious beliefs inform her

disagreement with the concept of a gender identity distinct from natal sex, a concept that this Court has recognized as a matter of public concern. Janus, 585 U.S.

at 913–14 (identifying “gender identity,” among other

topics, as a “controversial subject,” a “sensitive political topic,” and “undoubtedly a matter of profound

value and concern to the public”). 2 Forcing Polk to use

2 That Polk’s beliefs are informed by her “sincerely held religious beliefs,” App. 7a (quoting Complaint ¶ 31), would be enough

on its own. But it should be noted that this ideological dispute

cannot be reduced to a clash between faith and reason.

Full social transition in childhood has been posited to lock in

what could otherwise be a temporary phase of identity exploration or confusion. See, e.g., Annelou L. C. de Vries & Peggy T. Cohen-Kettenis, Clinical Management of Gender Dysphoria in Children and Adolescents: The Dutch Approach, 59 J. Homosexuality

301, 320 (2012). Decades of research have found that most children with gender identity issues—between 61 and 100 percent—

14

pronouns in a way that endorses that ideology thus

compels her speech on a matter of public concern.

IV. STATE INTERESTS CANNOT JUSTIFY

COMPELLING SPEECH—PARTICULARLY

SPEECH THAT WOULD VIOLATE RELIGIOUS BELIEFS

Once an employee has shown that her speech regards a matter of public concern, as Polk has, “the interests of the teacher, 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” must be

balanced. Pickering, 391 U.S. at 568.

MCPS is certainly right that it is entitled to take

steps to ensure students’ “safety and equality.” App.

46a (Wilkinson, J., dissenting). But no balance can be

struck in which it does so by compelling a teacher to

endorse an ideology in which she does not believe. See

Barnette, 319 U.S. at 642 (“If there are any circumstances which permit an exception [to the unconstitutionality of compelled speech], they do not now occur

to us.”); see also Vlaming, 895 S.E.2d at 741–43 (noting

come to terms with their natal sex, typically during adolescence.

James M. Cantor, Transgender and Gender Diverse Children and

Adolescents: Fact-Checking of AAP Policy, 46 J. Sex & Marital

Therapy 307, 313 (2019) (collecting 11 studies from 1972 to 2019).

Social transition can hinder that development. Thomas D.

Steensma et al., Factors Associated with Desistence and Persistence of Childhood Gender Dysphoria: A Quantitative Follow-Up

Study, 52 J. Am. Acad. Child & Adolescent Psych. 582, 588 (2013).

Thus, a teacher without Polk’s religious convictions would

still have reason to believe that it would be unethical to use her

speech to interfere with children’s natural development.

15

that fact that teacher’s speech would be compelled

gave it special protection).

MSPS’s attempt to compel Polk to affirm beliefs

with which she disagrees is made only more egregious

by the religious basis of her refusal. App. 7a. Even if a

claim under the Free Exercise Clause alone would fail

under Employment Div. v. Smith, 494 U.S. 872, 878–

80 (1990) (holding that neutral law of general applicability that incidentally burdens religious practice is

not reviewed with heightened scrutiny), the religious

nature of Polk’s belief is an additional reason for the

Court to be wary of forcing her to speak. As the Court

observed in Kennedy: “That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government

attempts to regulate religion and suppress dissent.”

597 U.S. at 523–24. One way to regulate religion is to

dictate speech that contradicts religious beliefs, as the

MCPS seeks to do in this case.

Moreover, even if the policy in question is neutral

and generally applicable, Polk’s Free Exercise claim is

connected to a “communicative activity” and thus presents a “hybrid situation” under which a rule is reviewed under heightened scrutiny even according to

Smith. See Smith, 494 U.S. at 882. As amicus has argued, a regulation that compels speech will not survive

heightened scrutiny. Barnette, 319 U.S. at 642.

Because MCPS’s rule compels speech—and especially because it compels speech in violation of Polk’s

religious beliefs—the Court should hold that it cannot

be justified by the state’s interest.

16

CONCLUSION

This Court should grant cert. to get ahead of a

likely circuit split on the question of whether the use

of preferred pronouns falls within a teacher’s ordinary

job duties—and then reverse the court below because

specific pronoun usage (1) is not within a teacher’s ordinary duties, (2) regards a matter of public concern,

and (3) cannot be justified by state interests.

Respectfully submitted,

July 31, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute