➤ PROFESSOR, from p.29
Court’s 2020 Bostock ruling, had
confi rmed its compelling interest
in preventing discrimination
against transgender students. In
that case, the Sixth Circuit, and
ultimately the Supreme Court,
held that the ban on sex discrimination
in employment under Title
VII of the Civil Rights Act of 1964
applied to an employer’s discharge
of a transgender employee when
she announced her transition.
Judge Thapar rejected the argument.
“Harris does not resolve this
case,” he insisted. “There, a panel
of our court held that an employer
violates Title VII when it takes an
adverse employment action based
on an employee’s transgender status.
The panel did not hold — and
indeed, consistent with the First
Amendment, could not have held
— that the government always has
a compelling interest in regulating
employees’ speech on matters of
public concern ... It would allow
universities to discipline professors,
students, and staff any time
their speech might cause offense.
That is not the law. Purportedly
neutral non-discrimination policies
cannot be used to transform
institutions of higher learning into
‘enclaves of totalitarianism.’”
Furthermore, he wrote, “a requirement
that an employer not fi re
an employee for expressing a transgender
identity is a far cry from
what we have here — a requirement
that a professor affi rmatively
change his speech to recognize a
person’s transgender identity.”
“At this stage of the litigation,”
wrote Thapar, “there is no suggestion
that Meriwether’s speech inhibited
his duties in the classroom, hampered
the operation of the school, or
denied Doe any educational benefi ts.
Without such a showing, the school’s
actions ‘mandate orthodoxy, not anti
discrimination,’ and ignore the fact
that ‘tolerance is a two-way street.’”
He also rejected the argument that
how Meriwether addressed Doe in
the classroom deprived her of educational
opportunity, pointing out
Meriwether’s claim that Doe was an
active participant in class discussion
and earned a “high grade” in
his course.
Thapar supported this view by
noting that university president
Jeffrey A. Bauer, in confi rming
the disciplinary decision, had conceded
that Meriwether did not create
a hostile environment for Doe,
instead resting his decision on the
assertion that Meriwether discriminated
against Doe by addressing
cisgender students consistent with
their gender identity but not address
Doe consistent with her gender
identity. Thus, Judge Thapar
concluded, disciplining Meriwether
was not necessary to effectuate
Title IX’s policy of protecting educational
opportunity.
The court’s opinion lacks any
kind of discussion or understanding
concerning the concept of
“misgendering” and the harm that
infl icts on transgender individuals.
In the court’s view, the victim
here is Professor Meriwether, not
Doe. This refl ects the same cavalier
attitude towards misgendering
recently displayed in a Fifth Circuit
decision denying a request by
a transgender prisoner that she
be referred to consistent with her
gender identity in court papers
— which was also treated dismissively
by a Trump-appointed appeals
court judge. It calls to mind
a recent ruling by the 11th Circuit
striking down on First Amendment
free speech grounds an attempt by
Florida municipalities to protect
LGBTQ youth from the practice
of conversion therapy, yet another
opinion by a Trump-appointed
judge. The Trump Administration
may technically be at an end, but
it lives on in his appointment of a
third of the active federal appeals
court judges.
The only point on which the
Sixth Circuit panel affi rmed Judge
Dlott’s ruling was in her conclusion
rejecting Meriwether’s argument
that the University’s rule
was too vague to meet Due Process
standards. The Sixth Circuit
panel found that Professor Meriwether
was clearly advised of the
rule and was accorded due process,
while fi nding fault with the
lack of neutrality towards religion
exhibited by his department chair
and President Bauer. The court
ordered that Judge Dlott’s ruling
dismissing the lawsuit be vacated,
and that the case sent back to the
district court for proceedings consistent
with the 6th Circuit’s opinion.
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