An Important Victory in the Pronoun Wars

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In a unanimous ruling on Friday (in Meriwether v. Hartop), a Sixth Circuit panel delivered an important victory for Free Speech and Free Exercise rights. The district court had dismissed a professor’s claims that his university violated his First Amendment rights by punishing him for his refusal to use feminine pronouns to refer to a male student who identified as female. In his excellent opinion, Judge Amul Thapar reverses the district court and rules that the professor is entitled to pursue his claims.

Among the panel’s rulings:

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.”

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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.)

As Eugene Volokh points out in his post on the ruling, “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).” In other words, the First Amendment ought to protect people from being fined in their capacity as citizens for not using prescribed pronouns.

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