Culture

University's Transgender Pronoun Policy May Have Violated the First Amendment, Court Rules

Photo of Nicholas Meriwether, a professor penalized for refusing to use transgender pronouns, courtesy of Alliance Defending Freedom.

An Ohio university may have violated the free speech and religious freedom rights of a Christian philosophy professor by requiring him to refer to a biological male student with feminine pronouns and a feminine title, a court ruled Friday.

A three-judge panel of the Sixth Circuit Court of Appeals ruled in favor of Shawnee State University professor Nicholas Meriwether, Ph.D. Meriwether sued the university for violating his free speech and religious freedom rights by requiring him to refer to a biologically male student with feminine pronouns. A district court dismissed Meriwether’s lawsuit, but the Sixth Circuit reversed that ruling, allowing the lawsuit to proceed.

“Since Meriwether has 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, his free-speech claim may proceed,” Judge Amul Thapar, a Trump appointee, wrote in his opinion. Thapar also argued that the university likely violated Meriwether’s religious freedom by dismissing his religious arguments with hostility.

“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 at Alliance Defending Freedom (ADF) and one of Meriwether’s lawyers, said in a statement on Friday.

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“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 added.

Meriwether has taught at Shawnee State University for 25 years, teaching courses from ethics to the history of Christian thought. In 2016, Shawnee State University notified faculty that they would be required to refer to students by their “preferred pronouns.” Officials explained that professors would face discipline if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.” They also argued that the policy applied “regardless of the professor’s convictions or views on the subject.”

Meriwether, a Christian, believes that “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.” The university demanded that he violate this belief in the service of transgender identity.

Meriwether approached the chair of his department, Jennifer Pauley, to voice his concerns, and Pauley replied with derisiveness and scorn. She allegedly said that Christians are “primarily motivated out of fear” and should be “banned from teaching courses regarding that religion.” In fact, she allegedly went so far as to say that the “presence of religion in higher education is counterproductive.”

In January 2018, a male who identifies as female (referred to as “Doe” in the lawsuit) asked Meriwether a question, and the professor responded, “Yes, sir.” Meriwether did not learn that Doe identified as female until he accosted the professor at the end of class. Doe “demanded” the professor “refer to [Doe] as a woman” and use “feminine titles and pronouns.”

When Meriwether pushed back, Doe became hostile. “I guess this means I can call you a cu–,” Doe allegedly said. Doe said Meriwether would get fired if he refused to refer to Doe with female pronouns.

Roberta Milliken, the acting dean of the College of Arts and Sciences, advised the professor to use transgender pronouns or to “eliminate all sex-based references from his expression.” Meriwether proposed a compromise: he would use pronouns to address most students in class but would refer to Doe using Doe’s last name. Milliken accepted the compromise.

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Doe did well during that semester, earning a “high grade” that reflected the student’s “very good work” and “frequent participation in class discussions.”

Yet during the next semester, Doe raised more complaints against Meriwether, leading Milliken to reject the professor’s earlier compromise. Again attempting to find common ground, the professor asked whether the university would allow him to use 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.” Milliken rejected this option, saying such a disclaimer would violate the university’s gender policy.

After another complaint from Doe, Milliken announced she would launch a “formal investigation.” The cursory Title IX investigation only involved interviewing Meriwether, Doe, and two transgender students. Officials did not ask the professor to recommend any potential witnesses.

The Title IX report concluded that Meriwether engaged in discrimination and “created a hostile environment.” It did not mention Meriwether’s request for an accommodation based on his sincerely held religious beliefs.

Provost Jeffrey Bauer reviewed Milliken’s recommendation before adding a formal complaint into Meriwether’s record. The professor and his union representative raised religious concerns about the pronoun policy, but Bauer responded with hostility. At one point, he “openly laughed.”

Bauer went on to become the university’s interim president, the next official to review the report before it went into Meriwether’s record. Ironically, the officials Bauer tasked with reviewing the case actually rejected the Title IX “hostile environment” claim, but they still ruled against the professor, claiming he had engaged in “differential treatment.” The officials justified the university’s refusal to accommodate Meriwether’s religious beliefs by equating his views to those of a hypothetical racist or sexist.

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Meriwether fears that he will be fired or suspended without pay if he does not toe the university’s line on gender identity, and he claims the report in his record will prevent him from finding a job elsewhere.

The Sixth Circuit panel ruled that there is sufficient evidence that the university violated Meriwether’s free speech and religious freedom claims in order for the lawsuit to move forward. The university aimed to silence the professor on a matter of public concern in violation of the First Amendment. The Sixth Circuit also ruled that the university likely discriminated against Meriwether due to his faith, depriving his First Amendment right to a process free from religious discrimination. The fact that the university altered its reasoning from “hostile environment” to “differential treatment” severely undercut the case, the judge ruled.

The Sixth Circuit cited two key Supreme Court precedents in its ruling, the free speech case Janus v. AFSCME (2018) and the religious freedom case Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

It is heartening to see the Sixth Circuit resurrect this important case after a lower court wrongly dismissed it. Universities cannot enforce transgender orthodoxy in violation of free speech and religious freedom. The very fact that Shawnee State University attempted to do so is chilling. Sadly, this issue is likely to keep popping up in the coming months and years. Americans must fight for their right to speak the truth, regardless of the demands of leftist orthodoxy.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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