12 April 2021

Sixth Circuit Allows Professor to Move Forward with Transgender Speech Case

In a recent case, Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit addressed the important issue of pronoun policies in educational settings.  Meriwether, a professor at Shawnee State University, objected to a university policy requiring employees to refer to students by their preferred pronouns.  Meriwether sought an accommodation for his sincerely held religious beliefs – including a suggestion that he write in a class syllabus that he would adhere to the policy despite his disagreement with it – but his efforts at compromise were rejected by the university.  After receiving complaints from a transgender student, the university’s Title IX office conducted an investigation and placed a written warning in Meriwether’s file for creating a hostile environment.  Meriwether then filed a legal claim in court.

Meriwether alleged claims under the free speech and free exercise clauses of the First Amendment, among other claims.  The Sixth Circuit panel concluded Meriwether’s case could proceed under both theories.  As to the free speech claim, the court recognized that the First Amendment protects the academic speech of university professors.  By infringing on Meriwether’s entitlement to strong curricular speech protections, the university violated the First Amendment.  As to the free exercise claim, the court noted that the university had appeared to handle Meriwether’s religious request for accommodation with open hostility.  The court opined that the university’s application of the policy was not neutrally‑applied to religion, and went so far as to be antagonistic. Consequently, the university violated Meriwether’s free exercise rights.

Although the case is in its early stages and Meriwether has yet to prove his claims, it signals important developments for law in this arena for both free speech and free exercise claims.  On the other hand, the significance of the case will, at least in some respect, be diminished for public school employers in K-12 settings, where teacher curricular speech does not invoke First Amendment speech protections.  However, potential “compelled speech” arguments, though referenced by the court, were not addressed substantively and may be relevant in similar future cases in the K-12 context.  Additionally, public school employers need to remain vigilant in ensuring their policies are neutrally-applicable – i.e., that they are evenly applied in all cases and avoid targeting certain viewpoints, including religious viewpoints.  With anticipated Title IX developments from the Biden administration, this case will almost certainly not be the last word on the matter.

The opinion can be accessed here.