Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
In Progress Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The United States (U.S.) Court of Appeals for the Sixth Circuit reversed the free-speech and free-exercise holdings of a district court to favor a professor who was disciplined by his university for improperly addressing a transgender student in his class. Nicholas Meriwether refused to address a transgender student by her preferred pronouns. He sought to compromise but this was ultimately rejected by officials at Shawnee State University. A written warning was issued by the university to Mr. Meriwether for violating its nondiscrimination policies. Mr. Meriwether brought a lawsuit against the officials at Shawnee State arguing his constitutional rights were violated. The district court referred the case to a magistrate judge who dismissed the claims; the district court adopted the magistrate’s report and recommendation in full. Judges Amul Thapar, David McKeague, and Joan Larsen of the Sixth Circuit held that Meriwether’s free-speech and free-exercise rights were violated. Under U.S. Supreme Court and Sixth Circuit precedent, the Court noted that Meriwether’s academic speech was protected by the First Amendment, particularly on an issue of public concern. Additionally, Shawnee State’s application of its gender-identity policy was not neutral because of hostility exhibited towards Meriwether’s religious beliefs and circumstances that permitted a plausible inference of non-neutrality.
The appellant in the case was Nicholas K. Meriwether. Mr. Meriwether, a self-described evangelical Christian, was a professor of philosophy at Shawnee State University in Portsmouth, Ohio for twenty-five years.
In 2016, Shawnee State notified the faculty that they had to refer to students by their preferred pronouns. Professors would be disciplined if they refused to use students’ preferred pronouns and disregarded any convictions or views to the contrary on the subject. In Mr. Meriwether’s classes, he typically referred to students by the title “Mr.” or “Ms.” followed by their surnames.
In 2018, a transgender student in Mr. Meriwether’s class requested that he refer to the student by her preferred gender identity title and pronouns. Mr. Meriwether had refused her request, explaining that his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believed were false. The altercation was reported to senior university officials by Mr. Meriwether. After speaking with the Acting Dean of the College of Arts and Sciences, a compromise was reached where Mr. Meriwether would only use the student’s surname.
The student was still dissatisfied with how she was addressed and complained on multiple occasions, resulting in the Acting Dean informing Mr. Meriwether that he had to address the student as a female. If he refused, he would violate university policy and face disciplinary action. Mr. Meriwether proposed another compromise: he would use the preferred pronoun 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” [p. 5]. This was rejected and the Acting Dean insisted that the disclaimer would also violate university gender identity policy.
For the remainder of the semester, the student in question did not respond negatively to Mr. Meriwether calling her by her last name. The student excelled and was highly participatory in the course; she was awarded a high grade. Despite this, the Acting Dean announced that she was initiating a formal investigation against Mr. Meriwether based on a complaint received from the student. An ultimatum was given for Mr. Meriwether to either not use any sex-based pronouns when referring to students or refer to the student as a female.
The matter was referred to Shawnee State’s Title IX office. Following an investigation that included interviews with Meriwether, the student, and two other transgender students, the Title IX office concluded that Meriwether’s treatment “created a hostile environment” [p. 6] that violated the university’s nondiscrimination policies. The report did not mention Mr. Meriwether’s request for an accommodation based on his sincerely held religious beliefs. The Acting Dean subsequently brought a formal charge against Mr. Meriwether under the faculty’s collective bargaining agreement. She argued that it was necessary for him to be disciplined and recommended placing a formal warning in his file.
Mr. Meriwether wrote a letter to the provost tasked with reviewing the disciplinary recommendation and outlined his efforts to accommodate the student and his reasons for not using female pronouns to refer to the student. He pleaded that reasonable minds should differ on the issue, but his plea was rejected. A written warning was thus placed in Mr. Meriwether’s file which reprimanded him and directed him to change the way he addressed transgender students as to avoid further disciplinary actions.
The Shawnee State faculty union filed a grievance on Mr. Meriwether’s behalf. It was presented at a hearing before the provost, who was again tasked with deciding the grievance. The provost was “hostile” [p. 8] towards the arguments at the hearing and denied the grievance. The next step was appealing the grievance to the university’s president. However, the president was again the provost – he had been appointed interim university president shortly after denying the grievance. On the interim president’s behalf, two representatives met with Mr. Meriwether and a colleague. While the officials agreed with the union in favor of Mr. Meriwether that there was no hostile environment, they still recommended ruling against him because of differential treatment. The officials also argued that Meriwether’s religious beliefs equated to those of a “hypothetical racist or sexist” [p. 9]. These findings were adopted by the interim president and the grievance was denied again.
Mr. Meriwether filed a lawsuit, alleging that the university violated his rights under (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the university. The district court referred the case to a magistrate judge. The student and Sexuality and Gender Acceptance organization intervened. The defendants and intervenors filed motions to dismiss the case and the magistrate recommended dismissing all of the federal claims and declining to exercise supplemental jurisdiction over his state law claims. The district court adopted the magistrate’s report and recommendation in full despite objections from Mr. Meriwether. He subsequently appealed the decision, except as it related to the dismissal of the equal protection claim.
Judges Amul Thapar, David McKeague, and Joan Larsen of the U.S. Court of Appeals for the Sixth Circuit addressed in turn the appellant’s free-speech, free-exercise, and due-process claims.
The Court firstly noted that the First Amendment protects the right to both speak freely and refrain from speaking. The Government cannot compel affirmation of a belief with which the speaker disagrees. These principles were emblematic of the founding generation condemning laws that required public employees to affirm or support beliefs with which they disagreed. This idea comported with free speech being essential to a democratic form of government. Otherwise, the absence of “genuine” [p. 11] freedom of speech meant that “the search for truth was stymied, and the ideas and debates necessary for the continuous improvement of [the] republic [could not] flourish” [p. 11].
Further, courts have traditionally recognized the Free Speech Clause’s application to professors and students at public universities. Referencing West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943), the Court emphasized that government officials violated the First Amendment when trying to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” and “force citizens to confess by word or act their faith therein” [p. 11]. However, free-speech rules applied differently when government and government employees expressed themselves – Garcetti v. Ceballos 547 U.S. 410 (2006) held that statements by public employees pursuant to their official duties were not protected because they did not speak as citizens for First Amendment purposes.
The Court sought to determine whether Garcetti barred the appellant’s free-speech claim. It noted that Garcetti explicitly declined to address whether its analysis applied to cases of speech regarding scholarship or teaching. The Court turned to Supreme Court cases to fill that gap, specifically Sweezy v. New Hampshire 354 U.S. 234 (1957) and Keyishian v. Board of Regents 385 U.S. 589 (1967). The Supreme Court had long recognized the importance of public education and its associated freedoms of speech and thought that enabled the “marketplace of ideas” [p. 12]. The Court highlighted three critical interests at stake in a college classroom: (1) the students’ interest in receiving informed opinion; (2) the professor’s right to disseminate his own opinion; and (3) the public’s interest in exposing future leaders to different viewpoints.
Therefore, the First Amendment did not tolerate the “’authoritative’ compulsion of orthodox speech” [p. 13] and the danger it presented to the exposure and exchange of ideas in universities. Public universities did not have the “license to act as classroom thought police” [p. 16] or “to avoid controversial viewpoints altogether” [p. 16]. The free-speech rights of professors when teaching were protected.
The Court had previously rejected efforts to censor teacher speech without restriction. It favored arguments that elevated a public university professor’s rights to academic freedom when he/she engaged in core academic functions. Likewise, the Court noted that its position corresponded with those of the Fourth, Fifth, and Ninth circuit courts. In its view, the lack of free-speech protections when teaching meant that “a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as ‘comrades’” [p. 14].
The Court dismissed opposing arguments by Shawnee State and the intervenors. One argument was that the Supreme Court cases should not be applied because they preceded Garcetti. However, the Court noted that it was bound to apply existing Supreme Court precedent unless “expressly overruled” [p. 14]. A second argument was that the academic-freedom exception did not protect the appellant’s use of pronouns in the classroom. The Court disagreed, noting that the issue was connected to the substance of classroom discussion: how a teacher leads a classroom discussion “shape[s] the content of the instruction enormously” [p. 15], especially in a political philosophy course. Referencing Papish v. Board of Curators of the University of Missouri 410 U.S. 667 (1973), the Court articulated that the dissemination of ideas on university campuses could not be blocked based on only “conventions of decency” [p. 15]. Thus, the academic-freedom exception applied to “all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not” [p. 15].
Shawnee State also posited that its pronoun rule was a ministerial one akin to teachers calling roll at the start of class. The Court noted that pronouns and titles differ by carrying a message: “people can have a gender identity inconsistent with their sex at birth” [p. 16]. Disagreeing with that message and not communicating it was not deemed a matter of classroom management but of academic speech. Lastly, the Court dismissed the defendants’ contention that academic freedom is for public universities, not professors per se. University professors indeed had First Amendment rights when teaching which they could assert against the university.
The Court turned to the Pickering-Connick framework to decide if the appellant had plausibly alleged that his speech was covered by the First Amendment. Referencing Pickering v. Board of Education 391 U.S. 563 (1968) and Connick v. Myers 461 U.S. 138 (1983), two questions fell under this framework: (1) did the appellant speak on a matter of public concern? (2) was the applicant’s interest in doing so greater than the university’s interest in promoting the efficiency of the public services it performed through him?
The “linchpin” of the first question was “the extent to which the speech advance[d] an idea transcending personal interest or opinion which impact[ed] our social and/or political lives” [p. 17], referencing Dambrot v. Central Michigan University 55 F.3d 1177 (6th Cir. 1995). The appellant fulfilled this criterion in his refusal to use gender-identity-based pronouns. His refusal conveyed a “powerful message implicating a sensitive topic of public concern” [p. 17] and was one-side of the political and social debate around the foundational nature of the sexes. The Court provided a brief historical overview of pronoun usage in American discourse to underscore the contentious nature of the issue. Likewise, the university appeared to know that the issue was contentious, otherwise the appellant would not have been prohibited from explaining himself in his syllabus.
Since the appellant was deemed to be speaking on a matter of public interest, question two – the Pickering balancing – could be applied to determine if First Amendment rights were violated. The Court evaluated the appellant’s interests. This included the tradition of academic freedom which had special First Amendment concern, as previously noted. These interests were enhanced by involving core religious and philosophical beliefs, and by involving potentially compelled speech in relation to an issue of public concern. Moreover, society’s increasing embrace of gender identity advanced the need to protect First Amendment rights of those who disagreed. This was salient in the context of college classrooms where students had an interest in contrarian views.
Regarding Shawnee State’s interests, there was a compelling interest in stopping discrimination against transgender students. The Court clarified that the government did not have a compelling interest in regulating employees’ speech on issues of public concern. If it did, it would allow universities to discipline professors and students whenever their speech caused offense. Quoting from Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969), purportedly neutral non-discrimination polices could not be used to alter academic institutions into “enclaves of totalitarianism” [p. 21].
Based on the facts themselves, the university’s interest in punishing the appellant was comparatively weak. The appellant had proposed a compromise to only use the student’s last name. This would have been a “win-win” [p. 21] and would not have created a hostile learning environment. The Acting Dean initially approved of the idea and, when implemented, the student was not prevented from being an active participant and achieving a high grade. Thus, there was no suggestion that the appellant’s speech inhibited his duties, the operation of the school, or the student from receiving education benefits. Without any evidence to the contrary, anti-discrimination based on compliance with Title IX was not implicated; merely orthodoxy was being pursued. The Pickering balance favored the appellant. Taking the allegations as true, the Court held that the university violated the appellant’s free-speech rights.
Free Exercise Clause
The Constitution required that the government commit itself to religious tolerance and that laws hindering religious exercise were presumptively unconstitutional unless they were neutral and generally applicable. The latter required examining the history, context, and application of the relevant law. The appellant alleged the gender-identity policy was not neutral because Shawnee State exhibited hostility to his religious beliefs and because irregularities in the university’s processes permitted a plausible inference of non-neutrality.
State actors had to give neutral and respectful consideration to a person’s sincerely held religious beliefs; applying a neutral law with religious hostility violated the Free Exercise Clause. In this case, the appellant did not plausibly receive full and fair consideration for his religious objection when he sought to assert it in various circumstances. Based on the instances where the appellant discussed his religious concerns with Shawnee State officials, the responses to the appellant were not neutral but hostile and dismissive. The reaction harkened back to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 138 S. Ct. 1719 (2018) where the Supreme Court had reversed a decision of the Colorado Civil Rights Commission when the Commission made hostile statements towards religion that questioned the fairness of its adjudication. In these circumstances, an inference of religious hostility was plausible. Specifically, the appellant had plausibly alleged that religious hostility affected the university’s interpretation and application of its gender-identity policy. The Court added that the claim’s ultimate success would depend on the “results of discovery and the clash of proofs at trial” [p. 25].
Regarding the claim that irregularities in the university’s processes permitted a plausible inference of non-neutrality, the Court also agreed. Since prima facie neutrality of laws is not determinative pursuant to the Free Exercise Clause, the Court outlined that it was obliged to meticulously scrutinize irregularities to decide if a law was used to suppress religious beliefs. In this case, such scrutiny indicated non-neutrality.
Firstly, the university’s basis for disciplining the appellant was a “moving target” [p. 26]. This fluidity combined with religious hostility permitted a plausible inference that the university did not act neutrally. It instead used its policy as a “pretext for targeting Meriwether’s beliefs” [p. 26]. Secondly, the university’s handling of accommodations was also a moving target. The appellant’s compromise was accepted at first but later rejected and the university claimed that its policy did not permit religious accommodations. The university’s turnaround seemed to demonstrate a plausible inference that there were in fact accommodations available, but none were provided – another pretext for punishing the appellant’s religious views. Thirdly, the university’s Title IX investigation raised red flags that altogether provided probative circumstantial evidence of discrimination. This included interviewing just a few witnesses and not requesting witnesses on behalf of the appellant with alternative viewpoints. The conclusion was still that a hostile environment was created, and no explanation was included that linked the findings to the specific definition of “hostile environment” under university policies. Neither did it weigh the appellant’s request for accommodation. Such “cursory” [p. 27] investigation and findings indicated subtle non-neutrality that compromised the neutral consideration to which the appellant was entitled.
The Court again dismissed opposing arguments by Shawnee State and the intervenors. One argument was that nondiscrimination laws do not ever burden religious beliefs, based on case-law where an employer was prevented from firing a transgender employee because of their transgender status. The Court explained that a requirement to refrain from firing was different to a requirement to affirmatively change one’s speech. Likewise, the dismissal of the appellant’s compromise showcased that his religious beliefs were being burdened. Another argument from the defendants was that the university’s initial disciplinary steps were free from animus. However, the Court noted that even if a disciplinary proceeding started out fair, it could still violate the Free Exercise Clause if influenced by hostility at a later stage. Lastly, the university argued that the appellant could have complied with its alternative to not use pronouns. The Court deemed this alternative as “coercion” [p. 30] which was impractical and still prohibited the appellant from speaking pursuant to his beliefs.
The university did not argue that its actions met the most rigorous of scrutiny, i.e., that they advanced interests of the highest order and were narrowly tailored in pursuit of those interests. Thus, the appellant succeeded in his allegation that Shawnee State burdened his free-exercise rights.
The last issue was whether the gender-identity policy was unconstitutionally vague as applied to the appellant. Policies were vague enough to violate due process when they either failed to inform ordinary people what conduct was prohibited or allowed for arbitrary and discriminatory enforcement. In this case, the Court noted that the appellant was on notice about the policy’s prohibitions. When he asked for guidance, he was informed to use the student’s preferred pronouns. When he did not comply, he was disciplined. The Court therefore found that he could not challenge it for vagueness. Furthermore, the appellant failed to argue that the policy allowed for arbitrary and discriminatory enforcement, and this claim failed as well.
Based on this reasoning, the Court affirmed the district court’s due-processing holding, reversed its free-speech and free-exercise holdings, vacated its dismissal of the state-law claims, and remanded for further proceedings consistent with its opinion.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by ruling that disciplining a university professor for refusing to use a student’s preferred pronoun on the basis of sincere religious beliefs is a violation of his/her free-speech and free-exercise rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Referenced by the Court to acknowledge that free-speech rules applied differently when government and government employees expressed themselves.
Referenced by the Court to decide if the appellant had plausibly alleged that his speech was covered by the First Amendment.
Referenced by the Court to address speech in relation to scholarship and teaching.
Referenced by the Court to address speech in relation to scholarship and teaching.
Referenced by the Court to decide if the appellant had plausibly alleged that his speech was covered by the First Amendment.
Referenced by the Court to note that purportedly neutral non-discrimination polices could not be used to alter academic institutions into “enclaves of totalitarianism” [p. 21].
Referenced by the Court to showcase how hostile reactions to sincere religious beliefs undermined the fairness of adjudication and establish plausible inferences of religious hostility.
Referenced by the Court to emphasize that government officials violated the First Amendment when trying to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” and “force citizens to confess by word or act their faith therein” [p. 11].
Referenced by the Court to articulate that the dissemination of ideas on university campuses could not be blocked based on only “conventions of decency” [p. 15].
Referenced by the Court in determining if a matter spoken about was of public concern: the “linchpin” was “the extent to which the speech advance[d] an idea transcending personal interest or opinion which impact[ed] our social and/or political lives” [p. 17],
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.