Court Finds in Favor of Professor Who Refuses to Utilize Student’s Preferred Gender Pronouns
This case arose because a philosophy professor at Shawnee State University (Portsmouth, Ohio) refused to abide by the University’s policy requiring that he refer students with pronouns corresponding to their gender identity. The professor is a devout Christian whose religious convictions influence his thoughts on human nature, marriage, gender, sexuality, morality, politics, and social issues.
At the start of the 2016-17 school year, the University informed its faculty that they were required to refer to students by their preferred pronouns. The professor was informed that he would be disciplined if he refused to use a pronoun that reflects a student’s self-asserted gender identity. In his class that semester, a student requested to be referred to utilizing the female pronouns, and the professor would not oblige. The professor then requested accommodations for his religious and personal views. The student then filed a Title IX complaint against the professor. The professor’s request for religious accommodations were denied by the University, and the Title IX complaint resulted in a conclusion that the professor created a hostile environment for the students in his class; a violation of the University’s nondiscrimination policies, which resulted in discipline.
Then, the professor filed a lawsuit alleging that the University violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Ohio Constitution, and his contract with the University.
The Sixth Circuit found that First Amendment free speech rules apply differently when it is government speech. Normally when public employees are speaking pursuant to their official duties, they are not speaking as citizens with First Amendment protections: therefore, the Constitution does not protect their speech/communications from employer discipline. However, in this case, the Sixth Circuit highlighted its belief that professors at public universities retain First Amendment protection- at least when engaged in core academic functions, such as teaching and scholarship.
The Court rejected the argument that “…teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). The Court recognized the professor’s rights to academic freedom and freedom of expression within this case, including within that academic freedom the choice to use of pronouns to shape classroom discussion. At the university level, this professor was able to make choices regarding gender identity for appropriate classroom discussion in his political philosophy courses.
In summary, the Court remanded the case back to the lower court for the lower court to issue a decision in compliance with the First Amendment rights recognized by the Sixth Circuit.
What this means for your District
While this case deals with speech from a university professor, and not that of a K-12 educator, it is a good case to be aware of when faced with situations that may arise from staff members who refuse to refer to a transgender student with the student’s preferred pronouns or nicknames. Schools are required to recognize the academic freedoms that exist for educators- but how this will be balanced against the needs of minor students in the future will be one to watch. In this case, the Court was not remotely persuaded by the arguments of the University that a hostile environment was created by the professor’s actions against the transgender students in his class, because the Court was not presented with any evidence or arguments that the student(s) was denied any educational benefits or opportunities.
Meriwether v. Hartop, (C.A. 6, 2021) 992 F.3d 492