Court allows professor to challenge university’s transgender pronoun mandate

CNA Staff, Mar 30, 2021 / 16:22 pm

A federal appeals court has allowed a philosophy professor to sue a public university in Ohio after he faced disciplinary action for declining to use female pronouns for a male student who identified as a transgender woman. 

The court ruled his legal challenge on grounds of academic freedom, free speech and free exercise of religion deserves to be heard.

The Sixth Circuit ruling reverses a decision by a federal district court to dismiss the professor’s claims that his free speech and free exercise claims were violated.

 

Dr. Nicholas Meriwether has served as a philosophy professor at Shawnee State University for 25 years. When a male student who identifies as a transgender woman asked to be referred to as a woman, university officials sided with the student and cited school non-discrimination policy. 

Meriwether first made efforts to refer to the student by his last name. He then offered to comply with university policy under duress, provided he could state his views in his syllabus. This move was rejected, and instead the university pursued disciplinary action that the professor would challenge through his faculty union and then the lawsuit now allowed by the appellate court.

 

“This case forced us to defend what used to be a common belief—that nobody should be forced to contradict their core beliefs just to keep their job,” John Bursch, senior counsel and vice president of appellate advocacy at the Alliance Defending Freedom legal group, said March 26.

 

“We are very pleased that the 6th Circuit affirmed the constitutional right of public university professors to speak and lead discussions, even on hotly contested issues. The freedoms of speech and religion must be vigorously protected if universities are to remain places where ideas can be debated and learning can take place,” Bursch said.

 

The court’s ruling came from a unanimous three-judge panel. Judge Amul Thapar, writing the decision, said the professor’s lawsuit may proceed because he “plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom.”

 

A lack of free speech protections for professors when teaching means that “a university would wield alarming power to compel ideological conformity,” the ruling added. It voiced concerns that a pacifist could be forced to declare that war is just, or a believer could be forced to deny the existence of God, or a civil rights advocate forced to condemn the Freedom Riders.

 

The decision said that American universities have traditionally been “beacons of intellectual diversity and academic freedom” that “have prided themselves on being forums where controversial ideas are discussed and debated.” They have usually “tried not to stifle debate by picking sides.”

 

The court faulted Shawnee State University because “it punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.”

 

The appellate court decision overturned a February 2020 district judge’s dismissal of Meriwether’s lawsuit. That judge ruled that the university did not violate the professor’s rights. The decision said that using correct student pronouns and titles, including those preferred by self-identified transgender students, is part of a professor’s job description and not a free speech issue. 

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At that time, the university commented: “We have maintained throughout this case that the facts show that every effort was made by Shawnee State to respect the rights of free speech and protect all individuals from discrimination, inside and outside of the classroom.”

 

Shawnee State University is a public university in Portsmouth, Ohio. It has about 3,400 undergraduates.

 

Meriwether’s view of the student’s behavior is recounted in a magistrate judge’s Sept. 5, 2019 report and recommendation, later adopted by the federal district court. The report referred to the male student as “Jane Doe,” and used Doe’s preferred female pronouns.

 

In a January 2018 political philosophy class where Meriwether was an instructor, he responded to a male student’s question with the phrase “yes, sir.” The professor said he responded “yes, sir” because “Doe is male,” Doe “appears male,” and no one seeing Doe would assume that Doe was “biologically female.”

 

The student approached the professor after class and identified as transgender and demanded the professor use female titles and pronouns. The professor voiced doubts that he could comply and questioned that students could “dictate how professors must refer to them.”

 

The student allegedly became “belligerent,” circled the professor, called him an obscene sexual term, and got in his face “in a threatening fashion.”

The university first asked Meriwether to stop using masculine and feminine titles and gendered pronouns entirely. He said this was practically impossible and proposed a compromise in which he would refer to the student by his last name. The student voiced dissatisfaction and the professor’s later accidental reference to the student as “Mr.” provoked further controversy.

 

“Misgendering” is a major taboo for many supporters of transgender identity and for many who identify as transgender. This position is rapidly becoming normalized under strict interpretations of anti-discrimination law and policies which treat gender identity as a protected class akin to race or sex.

 

The student threatened a lawsuit against the university, and under pressure from the university, Meriwether agreed to address the student using preferred pronouns on the condition he could put a disclaimer in his syllabus. The disclaimer would state that he followed the pronoun policy under duress and that he views biological sex and gender as the same and unchangeable.

 

The university dean said this was not compatible with the institution’s gender identity policy. The university’s Title IX office concluded that the professor had created a “hostile environment” that violated the university’s non-discrimination policies against disparate treatment. In a written warning, officials said the professor could be fired or suspended without pay for violating the policy.

 

Meriwether said the student received high grades and was not treated differently than other students. The professor’s faculty union unsuccessfully appealed the disciplinary action before he filed his lawsuit.

 

The National Center for Lesbian Rights is among those representing the student and the Sexuality and Gender Acceptance student group at Shawnee State.

 

Asaf Orr, senior staff attorney and director of the center’s Transgender Youth Project, told the Chronicle for Higher Education his clients are “disappointed” by the decision.

 

“The decision opens the door to discrimination generally,” said Orr. “Nothing in the opinion’s reasoning is limited to discrimination against transgender students.”

 

Meriwether himself discussed the case in a Sept. 28, 2020 opinion essay for The Hill. He contended “leftist professors and students enjoy enormous leeway, protected from any message that might question their views or ‘offend’ them.” 

 

“But conservative and traditionally religious professors and students who dare cross the leftist party line, such as the requirement to speak precisely as ‘woke’ ideology demands, are subject to discriminatory policies and even dismissal,” he said.

 

Meriwether said his own college experience did not affirm his own identity.

 

“I cannot recall a single professor who identified with my Protestant orthodoxy. One well-respected professor gave a public lecture on campus about how people like me are destroying the planet. And I could provide several other examples,” said Meriwether.

 

He explained that he had seen these differences as part of the college environment, believing “I can’t expect everyone to agree with me, and I hope they extend the same courtesy to me.” However, the professor said he now questions whether this still described the college experience.