A Virginia teacher was fired for refusing to use a transgender student’s pronouns. Now the teacher, Peter Vlaming, is suing his former school for violating his First Amendment rights. Does he have a case?
There aren’t many lawsuits about pronouns. In 2018, Nicholas Meriwether sued his employer, Shawnee State University, because he was disciplined for refusing to use a student’s pronouns. Like Vlaming, Meriwether charged that compelling him to use a pronoun violated his First Amendment speech protections along with his religious liberty. Finding that the university’s pronoun policy was constitutional, a federal court dismissed the suit.
The First Amendment says that the government shall make no law abridging the freedom of speech. That protection has long been interpreted to prevent the government from compelling speech as well. In West Virginia v. Barnette, in 1943, the U.S. Supreme Court ruled that a school couldn’t make students pledge allegiance to the flag, because a forced pledge made them declare a belief in the ideas for which the flag stood. Pronoun refusers like Meriwether and Vlaming claim that being forced to call a trans student he instead of she would compel them to speak in violation of their belief that sex is both binary and immutable.
Similar arguments were used in the U.K. by Dr. David Mackereth, who appealed his dismissal from a government board for refusing to use trans clients’ pronouns. That board rejected Mackereth’s appeal because his objection to using appropriate pronouns was simply “incompatible with human dignity.” The tribunal added that although religion is protected, Britain’s Equality Act did not protect Mackereth’s specific beliefs about the immutability of human sexuality.
It’s more common to hear about cases where schools and employers squelch nonbinary language. In 2017, the Tallahassee school district reassigned a transgender teacher who had asked their fifth graders to call the teacher ‘they.’
And in 2015, after the University of Tennessee’s Office of Inclusion politely suggested that teachers might ask students for their pronouns, the outraged state legislature passed a law banning the use of tax dollars to support nonbinary pronouns, even though no one knows how much a pronoun actually costs. The state that had banned the teaching of evolution back in 1925 banned language evolution almost a century later.
But back to the original question. Basic politeness suggests honoring a person’s name, title, and yes, their pronoun as well, but does the claim that “you can’t make me say your pronoun” have any legal merit?
True, the First Amendment protects speech from government interference, but such protection is not absolute. There’s no protection for threats and obscenity, for incitement to violence, for criminal conspiracy, or for slander and libel. The government may even compel a broad range of speech, everything from product labeling to the presidential oath of office, not to mention warnings on cigarettes and alcoholic beverages. And of course there is the Miranda warning, which compels police to speak when they might prefer not to.
In addition, federal and state laws protect against discrimination—often including linguistic discrimination. Finally, the right of an employer—even a government employer—to control employee speech when that speech is related to the job—is an established principle in employment law.
U.S. courts have refused to equate grammar with matters of conscience. The court rejected Meriwether’s suit because his university’s requirement to use students’ pronouns was a legitimate and constitutional regulation of workplace speech which “did not force plaintiff to express a belief on ‘gender identity’ that he did not personally hold or endorse.” Put simply, using a student’s pronoun does not commit the speaker to a specific view of gender as binary or nonbinary. It doesn’t even commit the speaker to a belief that gender exists. It’s simply a matter of common politeness, a way to smooth human interaction.
So far as interfering with Meriwether’s right to practice his religion, the court found that the pronoun requirement was viewpoint neutral. It applied to any belief system and promoted none, and so it did not violate the First Amendment’s protections of speech or religion.
But that’s no guaranty that the court hearing Vlaming’s suit will agree. In defending its pronoun policy, Vlaming’s school cited a U.S. Department of Education directive requiring schools to honor a student’s gender pronoun. That policy was implemented under the Obama administration, but it was rescinded by the Trump administration. Schools are still free to implement their own non-discrimination policies, but they will no longer have federal backing. Plus the U.S. Supreme Court is expected to rule later this term on whether employees may be fired for being gay or transgender. If the conservative majority rules against workers terminated for these reasons, classroom and workplace pronoun policies may become harder to enforce.
What regulations regarding pronouns are designed to do is to protect individuals from a hostile environment at school, at work, in prison, in interactions with health care professionals, and in shops, restaurants, hotels, and other places doing business with the public. These regulations—like those requiring bakeries to sell their wares to all customers, not just those who meet a religious litmus test—do not target personal interaction outside such environments, and their aim is to protect a vulnerable minority from what the framers of the Constitution saw as the tyranny of the majority.
Official directives about nonbinary pronouns don’t aim to silence speech. Instead, their goal is to validate the words of those whose voices have been consistently silenced. They’re all about maintaining respectful, neutral interactions on the job, in the classroom, in the marketplace, and in other public situations where regulation is traditionally seen as appropriate—no different from rules against the use of racial, ethnic, or religious slurs, swearing, or harassment in such situations. As such they are constitutional, and most important, they are compatible with human dignity.
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For the whole story on gender-neutral and nonbinary pronouns, click to order your copy of my new book, What’s Your Pronoun? Beyond ‘he’ and ‘she.’
