A federal appeals court has given the go-ahead for an Oregon school system to fire a social worker who displayed books defending the idea that there are only two sexes.
Roderick E. Theis had kept copies of “She Is She” and “He Is He” on a railing behind his desk at La Grande Middle School in Oregon. He also kept “Johnny the Walrus,” which satirizes gender changes, on his desk at his Elgin School District office.
The 9th U.S. Circuit Court of Appeals said the Intermountain Education Service District was on firm ground for first warning, then firing him for a “hostile expression of animus” toward transgender persons.
The judges, in a 2-1 decision, said when educators are carrying out official duties, their free speech rights are circumscribed.
“His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them. As such, Theis’s speech falls outside the First Amendment’s ambit,” wrote Judge John B. Owens, an Obama appointee. He was joined by Judge Jennifer Sung, a Biden pick.
Dissenting was Judge Lawrence VanDyke, a Trump nominee, who said Mr. Theis’ display of the books was clearly personal speech and the school system’s punishment was illegal.
He wondered if the school’s power reached to policing a teacher’s family photos displayed behind a desk.
“When a student sees personal materials hanging in a teacher’s office, they naturally identify that ornamentation as reflecting the teacher’s own personal views,” he wrote.
“He Is He” and “She Is She” are picture books that make statements such as “she is not he” and “she’s a daughter, not a brother.”
A student saw the books and filed a complaint against Mr. Theis in 2024.
The school system warned him to remove the books. He did not comply, and as a result, he faced disciplinary action.
Mr. Theis did say that he often removed the books from display when a transgender student came into his office.
A federal district court had rejected his request for an injunction keeping him on the job while the case proceeds. The 9th Circuit’s decision upholds the injunction.
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