A unanimous panel of the Sixth Circuit Court of Appeals has ruled that a professor can pursue a claim that his university violated his First Amendment rights by punishing him for refusing to use feminine pronouns to refer to a male student who identified as female. The professor declined the student’s request on religious grounds.
The professor had proposed several compromises as a way of balancing his religious-based concerns with the interest of the student. Ideally, in my view, such compromises are the way these cases should be handled, following the “reasonable accommodation” model developed in employment cases involving claims of discrimination on the basis of religion.
Accommodation One was that the professor would keep using pronouns to address most students in class but would refer to the transgender student using only that student’s last name. The University at first agreed, but then changed its mind.
Accommodation Two was that he would use the students’ preferred pronouns but place a disclaimer in his syllabus noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity. The University objected that putting such a disclaimer in the syllabus would violate the university’s gender identity policy.
The Sixth Circuit reversed a district court decision barring the professor from proceeding with his claim. The opinion was by Judge Amul Thapar. His name appeared on at least one of former president Trump’s shortlists for the Supreme Court, as did that of Judge Joan Larsen who was also on the panel. (The third member of the panel was appointed by former president George W. Bush.)
Ed Whelan summarizes the key points in Judge Thapar’s opinion as follows:
1. The general rule that the Supreme Court announced in Garcetti v. Ceballos (2006) that limits the Free Speech rights of government employees does not apply to professors at public universities, “at least when engaged in core academic functions, such as teaching and scholarship.”
2. For purposes of applying the Pickering-Connick framework, pronoun usage involves a matter of public concern.
3. For purposes of the Free Exercise Clause, the university’s policy was not neutral and general applicable, as university officials showed hostility to his religious beliefs and committed irregularities in the adjudication and investigative processes. (For purposes of the university’s motion to dismiss, the professor’s plausible allegations must be accepted as true. In order to prevail, the professor will need to prove key allegations.)
Eugene Volokh has more on the decision. He points out that the court did not decide whether a professor could insist on actually using a pronoun that didn’t match the student’s preferred pronoun. Rather, the court only considered whether a professor could decline to use the student’s preferred pronoun.
I hope that, in the spirit of reasonable accommodation, professors will be kind enough (as the plaintiff in this case was) not to insist on using pronouns to which a student, for whatever reason, objects.
Volokh also makes this important point:
Under the court’s reasoning, the First Amendment would even more clearly protect against liability imposed by the government as sovereign (e.g., through the civil liability system or through administrative fines)—for instance, in the New York City rules I discussed here—rather than just as employer.
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