LEGAL
Federal Court Backs Prof. Who Misgendered Student
Professor insisted on referring to a transgender woman with male pronouns
BY ARTHUR S. LEONARD
Nicholas Meriwether, a
philosophy professor at
Shawnee State University
in Portsmouth, Ohio,
was very concerned in 2016 when
the university announced that its
ban on gender identity discrimination
would require professors to
respect students’ gender identity
by using appropriate pronouns to
refer to them. Meriwether, a devout
Christian who rejects the idea that
people can have a different gender
identity than the one assigned to
them at birth, protested to his department
chair, who ridiculed his
religious beliefs and told him to
comply with the rule. Now a federal
appeals court panel has ruled
that Meriwether could have a First
Amendment right to insist on misgendering
transgender students
based on his religious beliefs.
According to his federal court
complaint, Meriwether says that
the department chair exhibited
hostility toward him and his beliefs
during their meeting, stating
that “adherents to the Christian
religion are primarily motivated
out of fear”; “the Christian doctrines
regarding hell are harmful
and should not be taught”; “anyone
who believes hell exists should
not be allowed to teach these doctrines”;
“faculty members who adhere
to a certain religion should
be banned from teaching courses
regarding that religion”; “the presence
of religion in higher education
is counterproductive” because “the
purpose of higher education is to
liberate students”; and “religion
oppresses students.”
Meriwether, who had taught at
Shawnee for 35 years, confronted
the issue up close in January 2018
when he returned from a semester
on sabbatical leave and discovered,
undoubtedly to his chagrin,
that there was a transgender
woman in his class, who is identifi
ed in the litigation as “Doe.” Meriwether,
believing Doe to be male,
addressed Doe as “sir” in response
to a comment Doe made in class
A federal appeals court panel sided with Professor Nicholas Meriwether of Shawnee State University
after he insisted on misgendering a transgender student.
discussion. After the class, Doe approached
Meriwether and advised
him that Doe was a woman and
should be addressed accordingly.
Doe threatened to fi le a complaint
against Meriwether if he did not
address her as female.
This led ultimately to the university
putting a disciplinary note
and warning in Meriwether’s fi le
when he failed to abide by instructions
to consistently address Doe
as a woman or to just to use her
last name when calling on or referring
to her. He tried to restrain
himself from addressing Doe incorrectly,
but slipped up on occasion,
quickly correcting himself. He told
one administrator that he would
be willing to comply with the rule
by referring to Doe consistently as
female if he could put an explanatory
statement in his course syllabus
setting forth his religious
views, but he was told that would
ALLIANCE DEFENDING FREEDOM
itself violate the anti-discrimination
rule.
Doe fi led at least two complaints
with university administrators
against Meriwether, leading to fi ndings
that he had created a hostile
environment for Doe, which he tried
to refute by claiming that Doe had
participated actively and well in
class discussion and earned a high
grade in his course. Meriwether appealed
these rulings and claimed
that when his union representative
tried to explain Meriwether’s religious
freedom argument to the university
president, that offi cial just
laughed and refused to listen.
US District Judge Susan J. Dlott
referred the University’s motion to
dismiss Meriwether’s First Amendment
lawsuit to a magistrate judge,
Karen L. Litkovitz, who issued a Report
and Recommendation in 2019
concluding that the case should be
dismissed because Meriwether’s
failure to comply with the university’s
rule did not involve constitutionally
protected speech. In January
2020, Judge Dlott issued a brief
opinion agreeing with Litkovitz’s
recommendation and dismissing
the case. Meriwether, represented
by Alliance Defending Freedom, a
staunchly anti-LGBTQ religious
litigation group, appealed to the
Cincinnati-based U.S. Court of Appeals
for the Sixth Circuit, which
reversed Judge Dlott’s ruling on
March 26, reviving the lawsuit and
sending it back to the district court
for trial.
Judge Dlott’s decision adopting
Judge Litkovitz’s recommendation
to dismiss the case was based heavily
on Garcetti v. Ceballos, a 2006
Supreme Court ruling that held, by
a vote of 5-4, that when government
employees speak or write as part of
their job, their speech is “government
speech” that is not protected
by the First Amendment. As Justice
Anthony Kennedy interpreted the
Court’s free speech precedents, an
individual is protected by the First
Amendment’s freedom of speech
when they are speaking as a citizen
on a matter of public concern,
but not when they are speaking as
a government offi cial. The case concerned
a prosecuting attorney who
claimed to have suffered unconstitutional
retaliation for an internal
memo he wrote and some testimony
he gave in a criminal court
hearing that met with disapproval
from his supervisors. The Supreme
Court held that neither his memo
nor his testimony enjoyed First
Amendment protection because he
was speaking as part of his job as a
government offi cial.
In a dissent, Justice David Souter
raised the specter of censorship
of public university professors who
are employed to engage in scholarship
and teaching and who would
theoretically be deprived of academic
freedom under such a rule.
Justice Kennedy responded in
his opinion by acknowledging the
academic freedom concern and
➤ PROFESSOR, continued on p.29
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