When is a student’s sexuality a fit topic for classroom debate?
All day, every day, at least according to the Sixth Circuit which ruled last week that a university violated a professor’s First Amendment rights by forcing him to use appropriate pronouns for students in his class. Because “academic freedom” to discuss a “hotly contested matter of public concern” makes an individual student’s gender a fit topic for classroom debate.
Professor Meriwether, a professor at Shawnee State University is a “devout Christian” who “strives to live out his faith each day” and believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.”
“Being faithful to his religion was never a problem at Shawnee State,” Judge Amul Thapar recounts ominously. “But in 2016, things changed.”
UH OH. What changed? Well, here’s how Prof. Meriwether described it in an opinion piece at The Hill.
On the first day of my political philosophy class at Shawnee State University in the spring of 2019, a biologically male student raised his hand and I called on him, unwittingly using the now-incendiary words, “Yes, sir.”
Because the real victim here is the teacher who refused to address a female student using appropriate pronouns, not the student who was singled out for repeated misidentification or addressed only by her last name when everyone else was Ms. X or Mr. Y, a “Socratic” practice Prof. Meriwether insists is vital to “help[] them view the academic enterprise as a serious, weighty endeavor” and “foster an atmosphere of seriousness and mutual respect.”
Mutual respect being the professor’s highest priority, obviously.
The school told Prof. Meriwether to cut it out. He could either refer to all students by their last names only, something the court refers to as a “practical impossibility that would also alter the pedagogical environment in his classroom,” or he could just treat the student the way he did every other woman in the room, “even though doing so would violate Meriwether’s religious beliefs.”
And even though the Supreme Court already ruled that discrimination on the basis of gender identity violates Title VII’s prohibition on discrimination on the basis of sex, the Sixth Circuit is still dribbling out nonsense about “the public’s interest in exposing our future leaders to different viewpoints.”
Wouldn’t these future leaders benefit from forcing one of their cohort to defend her gender identity via “robust and insightful in-class discussion” with the teacher every time she was called on?
Judge Thapar is so committed to the bit that he invents a strawman university which might order teachers to misgender all students, codifying sex discrimination into university code and inviting a million anti-discrimination lawsuits. It could happen!
Remember, too, that the university’s position on titles and pronouns goes both ways. By defendants’ logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors’ own views
Then the court goes on to endorse, not just the right of academics to express personal opinions on issues of gender identity, but the right to treat students differently on the basis of those opinions.
Meriwether did just that in refusing to use gender-identity-based pronouns. And the “point of his speech” (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech “concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes.” Professors’ Amicus Br. at 1. That is, his mode of address was the message.
Referring to it as a “Hobson’s Choice” between adhering to “the university’s orthodoxy” or betraying his religious faith, the court finds that the university policy violates both the Free Exercise Clause and Freedom of Speech. Because if you can’t treat trans women differently from every other woman, then the woke terrorists win.
Not to put too fine a point on it, this opinion is fucking gross. Fingers crossed for a better en banc panel.
Elizabeth Dye lives in Baltimore where she writes about law and politics.