Meriwether and Olentangy: The Sixth Circuit’s Battle Over Free Speech and Gender Identity
Blog Post | 112 KY. L. J. ONLINE | March 19, 2024
Meriwether and Olentangy: The Sixth Circuit’s Battle Over Free Speech and Gender Identity
By: Alex Drury, Staff Editor, Vol. 112
Meriwether and Olentangy: The Sixth Circuit’s Battle Over Free Speech and Gender Identity
In 2021 the Sixth Circuit became one of the first circuit courts to navigate the waters of free expression and gender identity with its keystone decision, Meriwether v. Hartop.[1] Here, the Court upheld the speech rights of a philosophy professor at Shawnee State University who was charged with misconduct after refusing to use the preferred pronouns of a student in his class.
In Meriwether, university officials promulgated a policy requiring faculty to use the preferred pronouns of individuals on-campus.[2] The professor, Meriwether, claimed that the requirement contradicted his Christian religious beliefs, compelling him to “affirm as true” ideas about gender that he did not believe.[3] Denied a religious exemption, the issue brought university enforcement after he accidentally used the non-preferred pronouns of a student and, as a compromise, began only using the student’s last name.[4] This was not satisfactory for the student, who filed multiple Title IX complaints, leading the university to issue an official reprimand and threat for “further corrective action” if he did not comply.[5] The lawsuit followed and was appealed to the Sixth Circuit. Upon review, the Court concluded that “the First Amendment protects the academic speech of university professors” and that Meriwether’s suit plausibly alleged that the school “violated his First Amendment rights by compelling his speech or silence,” creating a “pall of orthodoxy over the classroom.” [6]
Meriwether first admits that the government can limit the statements of public employees made in the course of their official duties, but that this case fell under a limited exception.[7] The opinion states that university professors retain their First Amendment rights “at least when engaged in core academic functions, such as teaching or scholarship” so as to prevent universities from “compel[ling] ideology conformity.”[8] The Court then determines if Meriwether was speaking on “a matter of public concern” and if his interest in the speech was greater than the school’s interest in “promoting the efficiency of public services it performs” with his employment.[9]
The Court found his speech to touch on gender identity, a “hotly contested matter of public concern,” in a manner meant to “convey a message” about ongoing debates over “the social control of language” and sexuality.[10] Because the speech implicated national issues of “political, social, or other concern,” it was determined to be speech on “public matters.”[11] The court then weighs the interest of the professor’s ability to speak on public matters against the university’s interest in efficiency of public services. Concluding that the sensitive core beliefs at stake and political nature of his speech did not inhibit his performance, harm the school’s operations, deny the student “any educational benefits,” or violate Title IX, it was protected.[12] Universities cannot compel anyone to use or not use someone’s pronouns.
A decision released last July by the District Court for the Southern District of Ohio, Parents Defending Education v. Olentangy Local School District Board of Education, threatens the extent of Meriwether’s protections for speech on gender identity in educational settings.[13] The case examines a school district’s ban on “intentional misgendering of transgender students” as “discriminatory language” that could create a “hostile learning environment.”[14] Challenged on First Amendment grounds for compelling speech similar to Meriwether, the Court here reaches the opposite conclusion.
The Court’s first major contention is that the creation of a “hostile environment” through “discriminatory speech” can cause a “substantial disruption” of school operations, which is speech that is classified as unprotected under Tinker v. Des Moines Independent Community School District.[15] Citing a number of studies demonstrating how high levels of verbal and physical abuse of LGBTQ youth, especially transgender students, can severely affect their “physical and psychological wellbeing,” the Court explains that this is not protected speech, but “verbal bullying.”[16] Admitting that students do not have a right “to be free from mere offense,” the opinion explains that “verbal bullying” is distinct because it “evinces disrespect,” “plays into stereotypes,” “lacks basis in scientific reality,” and inflicts “psychological and physiological harm.”[17] Protected speech, the Court argues, shows “civility,” “dignity,” and the listener’s “entitl[ment] to be treated as equals in the ordinary operations of society.”[18] “Verbal Bullying,” however, creates a “hostile environment” which can lead to substantial disruptions through its incidental health effects, warranting regulations.[19]
Olentangy itself distinguishes Meriwether as a case dealing with classroom discussions, not “everyday situations.”[20] It suggests that intentional misuse of pronouns in social conventions, like greetings and acknowledgement of another person, does not “wade into the gender identity debate” and offer the same protections of religious viewpoint as Meriwether suggests.[21] Instead, using preferred pronouns is described as upholding “legitimate pedagogical concerns” to facilitate safe student interaction without compelling anyone’s belief.[22]
Olentangy is currently slated for review by the Sixth Circuit and it is easy to see how it is at odds with Meriwether. The thin distinction made by the District Court suggests that misgendering is acceptable for a classroom discussion, to preserve academic expression, but is impermissible for ministerial tasks and everyday conversation as it can cause extensive harms. It is difficult to understand why the court’s fear of psychological damage suddenly disappears once the speech occurs in a classroom. Indeed, it might be even more harmful when a teacher, or someone else in a position of power, is able to use that platform for speech the Court finds so threatening. Further, Meriwether deals with a professor’s refusal to use preferred pronouns when personally addressing and referring to a student in his class. This seems almost identical to the type of “everyday situations” implicated under Olentangy, the only difference being that it takes place in a classroom. There is also the content issue. Under Meriwether, using preferred pronouns conveys beliefs about matters of public importance. Olentangy seems to suggest that once the same speech is directed towards another person in an interpersonal exchange, the innate expression of belief disappears.
While we wait to see whether the Sixth Circuit limits Meriwether or overrules Olentangy’s creative loophole, both cases provide worthwhile commentary fleshing out the possible relationship between free expression and offensive speech related to gender identity.
[1] Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021).
[2] Id. at 498-99.
[3] Id. at 498.
[4] Id. at 498-99.
[5] Id. at 500-01.
[6] Meriwether v. Hartop, 992 F.3d 492, 503 (6th Cir. 2021).
[7] Id. at 504-05.
[8] Id. at 505-06.
[9] Id. at 508 (The court utilized the Pickering-Connick test to determine whether his speech was protected under the First Amendment or if it could be regulated by his government employer).
[10] Id. at 506, 508.
[11] Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021).
[12] Id. at 511.
[13] Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., No. 2:23-CV-01595, 2023 WL 4848509 (S.D. Ohio July 28, 2023).
[14] Id. at *9.
[15] Id. at *8-9, *11.
[16] Id. at *11-12.
[17] Id. at *12-13.
[18]Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., No. 2:23-CV-01595, 2023 WL 4848509, at *13 (S.D. Ohio July 28, 2023).
[19] Id.
[20] Id. at *15.
[21] Id.
[22] Id.