Calling a trans person by their birth name — say, referring to traitor Chelsea Manning as traitor Bradley Manning — is called “deadnaming,” and it’s such a serious offense that Twitter has added deadnaming to its terms of service violations and is ready to suspend accounts over it.
So what to do when a professor refuses to call a transgender student by their preferred pronoun? It’s happened at Shawnee State University, where a professor named Dr. Nicholas Meriwether has filed suit against the school, says he was “silenced” and “punished” by the university for not respecting the transgender student’s preferred pronouns.
God this is so petty:https://t.co/lpQJg6aQl1
— Major Counter Hat (@NonWhiteHat) December 8, 2018
Trans student asks to be referred to by preferred gender, and preferred first name. That's all she asked.
In Slavic Languages, way back when, I got to pick my own Russian name. I chose Alyosha Bolshoi, meaning roughly,. Alexander the Great.
— Major Counter Hat (@NonWhiteHat) December 8, 2018
The Portsmouth Daily Times reports:
According to the lawsuit, on Jan. 9 of 2018 a transgender student (Alena Bruening) approached Dr. Meriwether after class and stated that Bruening was transgender and identified as female and demanded to be addressed as such. Meriwether said he could not comply with this demand and was not sure students could dictate how professors must refer to them. The lawsuit states, “To accede to these demands would have required Dr. Meriwether to communicate views regarding gender identity that he does not hold, that he does not wish to communicate, and that would contradict his sincerely held Christian beliefs.”
The lawsuit states that per his refusal Bruening became “belligerent” and stated “Then I guess this means I can call you a (expletive).”
Meriwether argues that he was just exercising his First Amendment rights, but attorney Gabriel Malor thinks his case is a loser.
Second day in a row we've seen one of these stories about a public employee who says they've got constitutional protections from trans antidiscrimination policies.
Lemme break it down (again). Let's start with the general rules for speech. https://t.co/e7rMqZGeql
— Gabriel Malor (@gabrielmalor) December 8, 2018
Here are the general rules for public employee speech. Yes, there are exceptions, don't write letters.
A public employee's private speech is protected.
— Gabriel Malor (@gabrielmalor) December 8, 2018
A public employee's speech about a matter of public concern is protected if the employee's interest outweighs the employer's interest in normal provision of public services.
On the other hand, a public employee's speech in the exercise of official duties is not protected.
— Gabriel Malor (@gabrielmalor) December 8, 2018
Turning to the facts here, this isn't private speech.
And being required to use preferred name and pronoun at the request of a student is not a matter of public concern; it's speech in the course of official duties. So it's not protected.
— Gabriel Malor (@gabrielmalor) December 8, 2018
So, as far as free speech retaliation goes, this one is a loser.
The religion claims are where it gets messier.
— Gabriel Malor (@gabrielmalor) December 8, 2018
If this were a federal case, we know that the free exercise clause does not protect an individual from rules of general applicability thanks to J. Scalia's drugs are bad, mmkay, issues.
— Gabriel Malor (@gabrielmalor) December 8, 2018
Again, if this were a federal case, RFRA, on the other hand, provides greater protection.
RFRA forbids gov't from (1) substantially burdening the exercise of religion unless (2) there's a compelling gov't interest and (3) the least restrictive means are used.
— Gabriel Malor (@gabrielmalor) December 8, 2018
That would be the Religious Freedom Restoration Act of 1993.
Here, it's a stretch to say that requiring a teacher to used preferred names and pronouns substantially burdens the exercise of his religion.
The use of pronouns seems like an incidental burden rather than a substantial one. But let's put a pin in this issue for now.
— Gabriel Malor (@gabrielmalor) December 8, 2018
Because Ohio doesn't have a RFRA!
What Ohio has is RFRA-like caselaw that diverged from federal law after Scalia's blunder in Smith. (don't write letters)
— Gabriel Malor (@gabrielmalor) December 8, 2018
Ohio's case law does not require a substantial burden. It only requires "truly held" religious belief and "coercive affect against the plaintiff" (yes, they used "affect" instead of "effect," don't write letters) in addition to compelling interest/least restrictive means.
— Gabriel Malor (@gabrielmalor) December 8, 2018
The professor may get a little further with Ohio law than RFRA, but even if he could leap that substantial burden/coercive affect hurdle, antidiscrimination laws are routinely held to be a compelling gov't interest and the professor rejected alternative means. So not protected.
— Gabriel Malor (@gabrielmalor) December 8, 2018
In short, he's got a loser case and I'm supposed to be working on something else, but I'm procrastinating. Thank you for coming to my TED Talk.
— Gabriel Malor (@gabrielmalor) December 8, 2018
Also isn’t there a case to be made that not calling a trans person by their preferred pronoun isn’t a religious belief?
— Brian F Verano (@bfverano) December 8, 2018
As a general matter, courts are rightly reluctant to opine on the validity of religious beliefs unless there's a giant neon sign flashing that it's not really sincerely held.
What they do instead is find that burden on that belief isnt substantial to their exercise of religion. https://t.co/tHWQBrF4mn
— Gabriel Malor (@gabrielmalor) December 8, 2018
I guess I shouldn't say it's a "loser case." It's a tough case. Precedent cuts against him in the areas of speech and religion. But precedent could change! Or the school could decide to settle.
So let's say it's a tough one, rather than a loser one.
— Gabriel Malor (@gabrielmalor) December 8, 2018
So, the case doesn’t look good for the professor, as school policy wins out in this case. According to the university, Meriwether remains a tenured professor in good standing in its English & Humanities Department and is teaching courses this fall.
Related:
ACLU and other groups celebrate first-ever International Pronouns Day to empower nonbinary people https://t.co/66HE2hT69J
— Twitchy Team (@TwitchyTeam) October 17, 2018
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