Public university professors have a constitutional right to intentionally misgender trans students in the classroom, a federal appeals court ruled on Friday in a perverse decision that wields the First Amendment as a weapon against LGBTQ students’ access to equal treatment in education.
The ruling in Meriwether v. Hartop comes as no surprise: It was heard by a panel of the 6th U.S. Circuit Court of Appeals made up of two Donald Trump nominees, Amul Thapar and Joan Larsen, plus a George W. Bush nominee, David McKeague. Trump’s judges were selected, in part, to curtail LGBTQ equality by legalizing discrimination against gender minorities in the name of free speech and religious liberty. Thapar, a Mitch McConnell protege, signaled his enthusiastic support for this agenda during oral arguments when he compared a policy requiring professors to use students’ preferred pronouns to a hypothetical rule compelling a Jewish professor to call a student “my Fuhrer.”
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The plaintiff, Nicholas Meriwether, is a philosophy professor at Shawnee State University in Ohio. In 2016, the school implemented a new policy requiring professors to use students’ preferred pronouns; Meriwether objected, citing his refusal to “recognize transgenderism.” Two years later, he misgendered a trans woman during class—inadvertently, he claimed, asserting that “no one would have assumed” she “was female.” The student, Alena Bruening, later “demanded” that he refer to her as a woman. When Meriwether refused, Bruening responded: “Then I guess this means I can call you a cunt.”
Meriwether reported the incident, and his dean sought a compromise: eliminate all gendered language from the classroom. He rejected this solution. Instead, he chose to call all other students “Mr.” or “Ms.” while referring to Bruening by her last name only. Bruening complained, and the dean asked him to recognize her as a woman. Meriwether said he might comply if he could add a disclaimer in his syllabus stating that he used preferred pronouns “under compulsion” and describing his personal objections to transgender identity. The dean rejected his terms, so Meriwether continued to call Bruening by her last name while addressing all other students in gendered language. The university launched a Title IX investigation, which found that Meriwether had violated the school’s nondiscrimination policy. The investigation concluded with “a written warning” placed in Meriwether’s file.
Aided by the anti-LGBTQ legal organization Alliance Defending Freedom—which has also tried to disqualify a judge because he would not allow its lawyers to misgender trans students in another case—Meriwether sued. He alleged a violation of rights to free speech and free exercise under the First Amendment. A federal judge tossed his suit, but Thapar revived it on Friday. He insisted that Meriwether’s refusal to use trans students’ preferred pronouns qualifies for constitutional protection because it involves “a hotly contested matter of public concern.”
“The university,” Thapar wrote in the court’s unanimous decision, “wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. … Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity.”
With this framing, Thapar transformed Meriwether’s violation of a nondiscrimination policy into political speech at the heart of the First Amendment. The “point of his speech,” Thapar wrote, “was to convey a message”—that Bruening is not a woman—and “his mode of address was the message.” Reading this opinion, which depicts Meriwether as a persecuted folk hero, it is easy to forget what the professor actually sought to do: use his position of authority to out Bruening as transgender in front of her classmates, then continually degrade her by denying her identity for an entire semester.
Thapar then went further: Meriwether, he wrote, had “plausibly alleged” a case of religious discrimination in violation of free exercise. This conclusion rests on a handful of comments made by various university officials that, according to Thapar, reflect “religious hostility.” One department chair told him that religion “oppresses students”; a provost laughed “at some point” during a meeting with Meriweather, which he took as mockery of his beliefs. And the school’s director of labor relations compared Meriweather’s views to “religiously motivated racism or sexism.” In Thapar’s view, these statements lead to an “inference of religious hostility.” If that is true, then the Supreme Court was also guilty of “religious hostility” when it compared anti-gay discrimination to race discrimination three years ago.
What is especially bizarre about Thapar’s opinion is that it values anti-trans speech over other speech in the academic context: Meriwether’s defiance of the school’s nondiscrimination policy warrants utmost constitutional protections; meanwhile, university officials’ rebuttal of Meriwether’s views is not. Why? Because this expression allegedly reflects hostility toward religion (which is unacceptable even in its mildest form) rather than hostility toward transgender people (which is perfectly acceptable even when used to demean a specific student in class). Thapar’s First Amendment protects all anti-trans speech as a matter of public concern while condemning the slightest anti-religious speech as an impermissible assault on the Constitution itself.
This irony is starkest in Thapar’s many rhetorical flourishes. In the same breath that he condemns university officials for comparing anti-trans discrimination to race discrimination, Thapar blithely equates LGBTQ nondiscrimination policies with totalitarianism. “Public universities do not have a license to act as classroom thought police,” he wrote. In fairness, he did not limit his analysis to this particular type of civil rights law; rather, he proclaimed the application of any nondiscrimination policy “could force a person to endorse views incompatible with his religious convictions.”
This announcement may be the most troubling line of the entire opinion. It was inevitable that a Trump judge like Thapar would undercut transgender rights. But the logic of Meriwether v. Hartop does not stop with preferred pronouns. Under Thapar’s reasoning, professors have a constitutional right to use racial epithets in class, to use misogynistic language in front of students, to express all manner of odious views in a maximally offensive manner. They would not have to worry about creating a hostile environment in violation of civil rights law. If disciplined, they could simply assert their First Amendment rights to speak about a “matter of public concern” however they please. (With one exception: Presumably, any speech critical of religion would remain off-limits, since such expression apparently violates others’ religious liberty.)
Thapar began his opinion by grandiloquently declaring: “Traditionally, American universities have been beacons of intellectual diversity and academic freedom.” That is not true: As Justice Clarence Thomas has explained, universities strictly limited students’ liberties, including free speech, for most of American history. The tide turned in the 1950s and ’60s after the liberal Warren Court issued a series of rulings protecting student speech and academic freedom. None of these decisions was rooted in the original meaning of the Constitution—nor could they be, since the Framers had no intention of safeguarding free speech on campus. Thapar identifies as an originalist, but he relied on these avowedly non-originalist precedents to reach his desired result in Meriwether. When history won’t get you where you need to go, the living Constitution is always there to lend a hand.
