PRONOUNS AND THE FIRST AMENDMENT
So what does the First Amendment have to say about pronouns? That is the question posed by a couple of recent lawsuits. In one, a professor is suing Southern Utah University for compelling him to use they/them pronouns when referring to a nonbinary student. In another, a Kansas school district is paying $95,000 to settle a lawsuit brought by a teacher who was forced to use students’ preferred pronouns against her wishes.
The Kansas settlement means good news for the Utah professor, right? Well, not so fast. The two lawsuits are different enough that one may not have much sway in the other.
In the Kansas case, the teacher objected not only to the school’s policy requiring her to use the preferred pronouns, but also to the policy that required her to effectively conceal the students’ preference when addressing parents. The policy required her to use the students’ legal name when talking with parents. Pamela Ricard, the teacher, argued that the policy conflicted with her deeply held religious beliefs. Ricard referred to a student as “Miss” despite the student’s preferred use of he/him pronouns. Ms. Ricard believes God assigns gender at birth and any policy requiring her to use language that is different from the student’s biological sex “actively violates Ms. Ricard’s religious beliefs.” In this instance, the school district decided to avoid the fight and paid up.
But that doesn’t mean Southern Utah will do the same. In that case, as far as I can tell, there’s no religious exception. The professor just contends that the University’s mandate on pronoun usage violates his First Amendment right to call people by whatever pronoun he chooses. As a public employee, Richard Bugg, the professor, has First Amendment protection. But it’s not unlimited. As an employer, Southern Utah can impose workplace rules that limit speech. For example, a public employee can’t harass fellow employees and avoid discipline by relying on the First Amendment. The First Amendment allows public employees to speak out on political topics and otherwise engage in discussions around public controversies.
That will be the issue in the Southern Utah suit if it gets to trial. Does the use of pronouns when addressing a student constitute speech on a public controversy? I’d say no and Southern Utah should be allowed to enforce its policy. But, as is obvious, I am not the judge.