Are Conservative Courts Giving Professors a Right to Mistreat Transgender Students?

The federal courts are creating a new constitutional right: Public-college teachers can now impose their religious beliefs on students. Only two such cases have been decided thus far, but their rulings come from high federal courts, one from the U.S. Supreme Court and the other from a federal court of appeals. Their similarity of approach, and their resemblance to other extravagant recent treatments of religious liberty by the justices, is grounds for alarm.

Nicholas Meriwether, who teaches philosophy at Shawnee State University, in Ohio, and routinely addresses students as “Mr.” or “Ms.,” refused to address a transgender woman by the pronouns or honorifc she uses. Meriwether explained that he was not willing “to communicate a university-mandated ideological message regarding gender identity” that conflicted with his Christian beliefs. When he sued the university for violating his rights to free speech and equal protection, a district court found that the student “dreaded participating in plaintiff’s class but felt compelled to do so because plaintiff graded students on participation.” The college had tried to accommodate Meriwether by proposing that he refer to all students by first or last names only, without using gendered titles for any of them. That would have treated everyone equally, and it would not have required him to say anything he did not believe.

Meriwether refused, declaring that titles “foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.” Instead, he proposed using the last name, without a gendered honorific, for the transgender student only. Of course, “seriousness and mutual respect” would have then been unavailable to her, and her alone. She would be conspicuously singled out, treated worse than all other students.

The United States Court of Appeals for the Sixth Circuit, in an opinion written by the Trump appointee Amul Thapar, declared that teachers’ academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.” Meriwether “advanced a viewpoint on gender identity.” Moreover, “the First Amendment interests are especially strong here because Meriwether’s speech also relates to his core religious and philosophical beliefs.”

Racism and sexism are also matters of public concern, and they have sometimes had religious justifications. Suppose a teacher thought it appropriate to address only the Black students by their first names, a demeaning treatment that was once common, to signify their subordinated status. Does Judge Thapar think that prohibiting that would cast “a pall of orthodoxy over the classroom,” as he wrote in Meriwether v. Hartop, and “transform institutions of higher learning into ‘enclaves of totalitarianism’”?