A growing number of lawsuits centering on whether or not public entities can force employees to use a person’s preferred pronouns could eventually force the Supreme Court to decide the issue.
The cases are still being litigated at the district and circuit court levels and often revolve around claims of freedom of speech, free exercise of religion, and nondiscrimination law, but the ever-growing number of lawsuits has conservative lawyers expecting an eventual date with the Supreme Court.
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Tyson Langhofer, a senior counsel at the Alliance Defending Freedom, told the Washington Examiner that there are an increasing number of cases centered on pronoun use and that they are becoming especially prevalent in K-12 public schools as several teachers have lost their jobs after invoking religious beliefs that prohibit them from using pronouns and names that do not correspond to a transgender student’s claimed gender identity.
Proponents of the policies say that refusing to accommodate a student’s preferred pronouns would have a substantially negative impact on the student’s emotional well-being and would violate federal law prohibiting discrimination on the basis of sex in education settings. But Langhofer and others argue that such policies amount to compelled speech and violate the right to freedom of speech and religious exercise.
“I do believe that the Supreme Court is going to have to weigh in on this if schools continue adopting these policies, which it appears that they’re doing,” the attorney said.
The Alliance Defending Freedom is currently litigating multiple cases for plaintiffs who have faced professional consequences for refusing or saying that they would refuse to use pronouns that did not conform to a person’s biological sex.
In April, Shawnee State University settled a lawsuit with ADF client Nicholas Meriwether, a professor of philosophy who refused to refer to a biologically male student as a female. The university settled the case after the 6th U.S. Circuit Court of Appeals ruled in favor of Meriwether and said the public university could not force ideological conformity among faculty.
Courts also looked kindly on the plight of Tanner Cross, a teacher in Loudoun County Public Schools, who, in remarks at a school board meeting, said he would not address a student by pronouns that differed from the student’s sex. The school district suspended Cross, but the Virginia Supreme Court later reinstated him.
And last month, the 7th Circuit remanded another pronoun case involving John Kluge, a teacher in Brownsburg Community School District in Indiana, back to the district level to be reconsidered in light of the U.S. Supreme Court’s ruling in Groff v. DeJoy, which said public entities had to accommodate religious exemptions unless they led to “substantial increased costs.”
Langhofer said ADF has numerous other cases related to pronoun use in various courts across the country and that it was the most common area of law that the organization’s Center for Academic Freedom has had to deal with.
“This issue is very [common],” Langhofer said. “And I think it’s because there’s a lot of misinformation out there about from outside advocacy organizations, which are pressuring schools, telling them what they can and can’t do.”
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The ADF attorney also faulted the Biden administration for contributing to the problem, noting that the Department of Education has introduced new Title IX regulations that would likely force school officials to use preferred pronouns or lose federal funding.
“It’s a very concerning development, where they’re using the power of the federal government to force all the school districts to violate teachers rights and the rights of parents and to take actions that really harm students,” he said. “It’s important for people to understand that the government has no business forcing teachers to express messages that they disagree with and that are harmful to students.”
