Does Allowing Turning Point USA “Two Genders: One Truth” Event to Be Held and Promoted at Public School Violate Title IX?

An excerpt from a long opinion by Judge Jasmine Yoon (W.D. Va.) Monday in Doe v. Albemarle County School Bd.:

Plaintiff J. Doe is a nonbinary student who attends a high school that is operated by Defendant Albemarle County School Board (“ACSB”). Doe has experienced gender dysphoria for as long as they can remember. As a result of discomfort with their biological sex and experiences being misgendered, Doe has battled significant symptoms of anxiety.

In September 2025, a Turning Point USA (“TPUSA”) student club at Western Albemarle High School (“WAHS”) informed the principal that they planned to host guest speaker and Defendant Victoria Cobb for an event entitled “Two Genders: One Truth.” Cobb, the president of a Christian lobbying organization, has publicly opposed gender affirming efforts and denied that gender identity is immutable. After receiving community pushback, as well as demand letters advocating both for and against allowing the event, ACSB decided that the speaker event could proceed as a club meeting during the lunch hour, where student attendance was voluntary, so long as the event remained orderly and respectful. The club promoted the event with flyers throughout the school during the week leading up to the event.

Doe sued, “claiming that ACSB’s decision to allow the TPUSA club to host and promote the Event constituted deliberate indifference to severe and pervasive sex-based harassment.” The court rejected the claim on the facts, but concluded that allowing the event may have created a subjectively hostile educational environment:

Here, the assertion that there are only two genders, as expressed through the title of the Event and the surrounding context, denies the very existence of Doe’s gender identity. The Speaker’s prior public comments about gender identity and the Club’s previous petition against transgender girls using girls’ bathrooms, make clear that the “Two Genders: One Truth” Event and the Speaker’s message oppose the recognition and support of nonbinary and gender diverse identities.

The complaint alleges Doe was subjected to this message through the flyers posted “on every wall” in the school building for five days leading up to the Event, the three days of promotion in the morning announcements and daily bulletin, and the Speaker’s statements to Doe and hundreds of their peers. See Complaint (alleging that the Speaker asserted “that policies that allow transgender individuals to use the restrooms and/or locker rooms consistent with their gender identity posed a risk to safety,” “that no policies should be driven by gender but rather should only be rooted in biological sex, and “that individuals cannot transition genders and that this was a matter of basic biology”).) Moreover, the comment [by a student who attended the event]—that “at a hood school, these trannies would get beaten up”—employs derogatory, name-calling language.

ACSB asserts that the Speaker’s statements do not constitute harassment, as Doe “does not allege that Ms. Cobb conveyed her statements in an aggressive manner or in a manner that mocked or ridiculed individuals who are transgender or gender diverse.” But ACSB does not provide any case law requiring that discriminatory or offensive statements be made with an aggressive or mocking tone to constitute harassment. Rather, the message—that Doe’s gender identity is invalid or nonexistent—is inherently offensive, “degrading[,] and humiliating” to Doe, regardless of the way in which this message is delivered.

Other courts have also recognized the emotional and mental harm imposed by statements or symbols expressing opposition to certain gender identities or sexual orientations, without placing any emphasis on the way these messages are communicated. In L.M. v. Town of Middleborough (1st Cir. 2024), the First Circuit held that a school could require a seventh grader to remove his shirt, which stated “There Are Only Two Genders,” without violating the First Amendment. In doing so, the court explained that even this silently expressed speech, not targeted towards specific students, has a “demeaning nature” that has a “tendency to poison the educational atmosphere.” Further, the court wrote, officials “knew the serious nature of the struggles, including suicidal ideation, that some of those students had experienced related to their treatment based on their gender identities by other students, and the effect those struggles could have on those students’ ability to learn.”

The court recognized that the “message is not at the farthest end of demeaning,” but that it nevertheless “denies the self-conceptions of certain middle-school students” that “are no less deeply rooted than those based on religion, race, sex, or sexual orientation.” See, e.g., Harper v. Poway Unified Sch. Dist. (9th Cir. 2006), vacated as moot by Harper ex rel. Harper v. Poway Unified Sch. Dist. (2007) (characterizing a t-shirt stating “Homosexuality is Shameful” as “demeaning,” “injurious to gay and lesbian students,” and a “psychological attack[ ] that cause[s] young people to question their self-worth and their rightful place in society); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204 (7th Cir. 2008) (upholding a school rule that prohibits “(1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including—perhaps especially including—adolescent schoolchildren, are highly sensitive”).

While many of these cases do not involve Title IX claims and thus do not directly address whether the Event and its promotion could constitute Title IX sex-based harassment, they underscore the humiliation and offensiveness of language that rejects the existence of transgender or gender diverse identities…. [O]ffensive verbal statements alone can constitute sex-based harassment, and that even comments not directed towards the plaintiff can support a finding of sex-based harassment.

The court was also open to the argument that the alleged harassment was severe or pervasive enough to create an objectively hostile environment:

To be actionable under Title IX, the harassment must be “so severe, pervasive, and objectively offensive,” and “so undermine[ ] and detract[ ] from the victim[‘s] educational experience, that the victim-student[ ] [is] effectively denied equal access to an institution’s resources and opportunities.” ACSB argues “Doe does not plausibly allege that the speaker event and its promotion created an ‘environment that a reasonable person would find hostile or abusive'” ….

Here, the amended complaint plausibly alleges that Doe subjectively perceived the promotion of the Event, the views conveyed during the Event, and the commentary after as hostile and abusive. The Speaker’s professed belief that Doe’s gender identity does not exist is deeply demeaning to Doe and other gender diverse students. See Fellers v. Kelley (D.N.H. 2025) (“[T]he symbolic message [opposing transgender girls’ participation in girls’ sports] included a demeaning and harassing assertion—an assertion of inauthenticity, falsity and nonexistence with respect to some students’ core and immutable characteristics (i.e., their gender identities). And, it seems evident that had the symbols been worn by students in school or during school activities, they could be barred as reasonably interpreted in context to convey a harassing, demeaning message likely to have a serious negative psychological impact on students who identify as transgender.“)

Doe contends that the Event’s message, as conveyed through the promotional materials and the Event itself, caused them to feel serious anxiety and discomfort. They have “broken down sobbing, questioning why their gender identity—who they are—is offensive to others.” This suffices to plausibly allege Doe’s subjective perception that the promotion and the Event were hostile and abusive.

To establish an objectively reasonable belief that the environment was hostile, a plaintiff must demonstrate that the environment was “permeated with ‘discriminatory intimidation, ridicule, and insult,’ … that is ‘sufficiently severe or pervasive to alter the conditions’ of, in this case, the victim’s educational environment.” … Because the speaker is an adult, her remarks to the students—in which she denied the existence of Doe’s and other students’ gender identities and asserted that policies should only be rooted in biological sex—may be more harmful than if only students made such comments. On the other hand, Cobb is not a WAHS teacher, and Doe does not include any other allegations suggesting that she is in a position of power or influence over Doe and other gender diverse students.

Even though attendance at the Event was not required, it was held at lunchtime in the same building where Doe and other gender diverse youth were required to attend school. Including the promotion leading up to the Event and radio show comments made after the Event, the amended complaint alleges that the harassing messages lasted for over a week. (See Complaint (alleging that the Club leaders made statements on a post-Event radio show that there are “only two genders” and that Doe’s legal claims are “absolutely ridiculous”).) {Although these statements were not physically made in the school, the Fourth Circuit has recognized that online or out-of-school statements may still be relevant to Title IX sex-based harassment claims.} And the student’s derogatory statement made … at the Event—that “at a hood school, these trannies would get beaten up”—adds to an objective perception of hostility towards Doe.

But the court rejected the Title IX claim on the grounds that Doe hadn’t sufficiently alleged deprivation “of equal access to educational opportunities or benefits,” based on Doe’s specific reaction to the situation:

For the sex-based harassment to be sufficiently “severe, pervasive, and objectively offensive” to give rise to Title IX liability, Doe must allege facts raising the plausible inference that the harassment deprived them of equal access to educational opportunities or benefits. Such a deprivation of access can be shown in “at least three different ways: if the harassment (1) results in the physical exclusion of the victim from an educational program or activity; (2) so undermines and detracts from the victim’s educational experience as to effectively deny [them] equal access to an institution’s resources and opportunities; or (3) has a concrete, negative effect on the victim’s ability to participate in an educational program or activity.” …

Doe has felt increasingly anxious and upset following the promotion and authorization of the Event. Doe alleges that the targeted nature of this Event has “taken an emotional toll.” The amended complaint discusses some of the effects of Doe’s mental and emotional distress following the Event, which includes: (1) being “emotionally and intellectually drained,” (2) experiencing anxiety and gender dysphoria symptoms that “mak[e] it more challenging to actively participate in school,” (3) suffering an emotional toll that “forc[ed] [Doe] to work even harder to actively participate in school programs and activities” and “[made] it even more difficult for [Doe] to go to school and focus on academic and extracurricular activities,” and (4) “engag[ing] less in class discussions out of fear for sharing their viewpoint around others who support the denial of their existence.”

Doe’s amended complaint does not allege any form of physical exclusion from an educational program or activity, nor does it allege that Doe is unable to participate in such programs or activities. Thus, Doe must plausibly allege that harassment has had some other concrete, negative effect on their ability to participate in school. As far as tangible or measurable effects on school participation or access, Doe alleges that they have engaged less in class discussions after the Event. This does not suffice to allege a concrete effect on their ability to participate in the educational opportunities and benefits provided by ACSB….

The court also concluded that the school defendants didn’t “act[] with deliberate indifference by responding in a way that was clearly unreasonable in light of the known circumstances,” which is required for Title IX liability:

Here, the alleged facts show that ACSB did not simply “remain idle” in response to known harassment. Rather, the allegations contain a series of actions taken by its leadership. First, Sublette met with the Club and expressed that “gender identity is a complex and controversial topic” such that the club should host the event after the school day has ended. Shortly after, ACPS issued a community message signed by Haas and others, which emphasized the voluntary nature of the event, underscored their expectations of “respectful conduct and nondiscrimination,” and acknowledged students’ constitutional rights to assemble. ACSB leadership made statements at the October 9 board meeting, then opened the floor up for public comment. Finally, ACSB took steps to add “police/security” at WAHS during the Event.

The court must determine whether Doe plausibly alleges that ACSB’s actions were “clearly unreasonable.” The Supreme Court has recognized that “it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.” … ACSB’s exposure to constitutional claims in this case is just a single, albeit important, factor in the court’s multifactor analysis of whether ACSB’s response as alleged was clearly unreasonable. Had ACSB stopped the Event, they would have likely been sued by the authors of the initial demand letter. {While the court does not weigh in on the merits of any of the threatened First Amendment claims against ACSB, it stands by its earlier characterization. These legal questions—the clash of First Amendment rights with efforts to protect vulnerable students from demeaning language in their school—are complex.}

And when considering (1) these threats of First Amendment claims against ACSB; (2) the complex, thorny nature of the relevant free speech doctrine; and (3) the fact that many reports made to ACSB centered on expected or predicted harassment rather than present harassment; Doe’s allegations do not raise a plausible inference that ACSB’s decision to allow the Event to proceed—at lunchtime, with voluntary attendance, and with increased security—was clearly unreasonable….  [And] Doe does not allege other steps ACSB could have taken that would not have implicated any First Amendment issues….

{The statement that an unidentified student made … at the Event referenced violence by stating “these trannies would get beaten up.” However, even if this comment constitutes a true threat, it does not give rise to liability for reasons described in Subsection III.A.2.i; Doe does not allege that ACSB had any notice or knowledge of students making statements like this [redacted].}

I think that such events, and the promotion for such events, should indeed be viewed as protected by the First Amendment, even if they do upset some students based on their gender identity. And I don’t think Title IX should be interpreted as covering such events, even if some students are quite upset by them. But in any event, I thought the court opinion worth passing along, whatever one might think of its (complicated) analysis on the merits.

Brian Peter Ettari, Jeremy D. Capps, and Melissa Yvonne York (Harman Claytor Corrigan & Wellman) represent the school board; Michael Benjamin Sylvester and Joshua Arthur Hetzler (Founding Freedoms Law Center) represent Cobb.