Balkinization: The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Caroline Mala Corbin

The Government’s Speech and the Constitution, by government speech expert Helen Norton, starts with what Norton terms the “first-stage” government speech question of distinguishing private speech from government speech. Most of this excellent book examines the “second-stage” government speech question of what limits the U.S. Constitution imposes on when and how the government may speak. In this piece, I apply Norton’s framework to the problem of a public schoolteacher’s refusal on religious grounds to use the proper pronouns of transgender students in their classrooms. In particular, I analyze two questions. The first, whether a public school may discipline the teacher for this refusal, turns on whether their speech is considered private or governmental. The second assumes that the teacher’s pronouns use in the classroom is government speech and asks whether the public school must take remedial action because the teacher’s refusal violates the Equal Protection Clause of the Fourteenth Amendment.

I. A First Order Question: Who Is Speaking

Currently, speech tends to be classified as private speech or government speech, and the First Amendment rules differ markedly for each category. Private speech is protected by the First Amendment’s Free Speech Clause. Government speech is not. “[T]he Constitution protects us from the government and not vice versa.” (p. 27) As Norton explains, the government must be able to control its speech in order to govern. (p. 28) If voters do not like the government’s expressive choices, they can elect a different government. (pp. 29, 33)

Norton recognizes that it is not always easy to categorize speech as private or governmental, especially when the speech has elements of both. (p. 29) There is also a risk that the government will seek to control and censor private speakers by labeling contested speech governmental. Norton believes that her proposed transparency principle would go a long way towards resolving these difficulties. (p. 30) Speech, including speech with a private component, should not be deemed government speech subject to government control unless the government makes its status as speaker apparent and thereby enable the public to hold it accountable for its speech. (p. 41) “[T]he value of the government’s speech springs primarily from its capacity to inform the public about its principles and priorities . . . This requires the government to make its expressive choices visible to the public.” (pp.43-44)

Lack of accountability, however, is not the only potential problem with classifying contested speech as government speech. Norton describes Rust v. Sullivan, a case where the Supreme Court held the government may bar physicians who received Title X family planning funds from discussing abortion with their patients. (p.49) The recommended response to patient requests for information was “the project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion.” Making clear that the statement represents the government’s viewpoint would certainly help pregnant patients understand that the refusal to discuss abortion as an option is driven by politics and not medicine. (p. 50) But at the end of the day, if the doctor’s speech is government speech and the government can dictate its content, Title X patients do not receive medically necessary information and are denied comprehensive medical care.

In addition to government-funded speech, Norton argues that application of the transparency principle helps with another type of speech that is neither clearly governmental nor clearly private: the speech of government employees. Under the rule established by the Supreme Court in Garcetti v. Ceballos, speech by public employees that is made pursuant to their official duties is government speech, and therefore unprotected by the Free Speech Clause. (p. 61) As a result, courts have been forced to hold that the government may punish with free speech impunity their employee whistleblowers whose employment duties include tracking government wrongdoing. (p. 62) Norton quotes the Seventh Circuit as lamenting, “although [the whistleblower’s] demotion for truthfully reporting allegations of misconduct may be morally repugnant . . . it does not offend the First Amendment.” (pp. 62-63).

Norton argues that a public employee’s speech pursuant to official duties should not automatically fall outside Free Speech Clause protection. Instead, the government should be able to “claim the power to control the speech of its employees as its own only when it has specifically commissioned or hired those employees to deliver a transparently governmental viewpoint for which the public can hold it accountable.” (p. 64) Examples include the speech of press secretaries, lobbyists, an educator hired by the health department to promote teen abstinence, or a muralist commissioned by the mayor. (p. 64)

What does this all mean for my public schoolteacher hypothetical? Actually, it is not a hypothetical, as several teachers and professors have already filed First Amendment lawsuits challenging school anti-discrimination policies that require using pronouns that match students’ gender identity. One teacher argued that he believes that God created people as male or female, that God fixed gender at the moment of conception, and that “he cannot affirm as true ideas and concepts that he deems untrue and sinful, as this would violate Biblical injunctions against dishonestly, lying, and effeminacy.”[1] Other educators have articulated similar claims.[2]

Under Garcetti, if the teachers’ speech is made “pursuant to official duties,” it is unprotected government speech and cannot form the basis for a free speech claim. The manner in which a teacher addresses a student in the classroom is “speech pursuant to official duties” because it owes its existence to the teacher’s job. Consequently, it is quintessential government speech that the government employer may control. As one court noted, “how faculty members relate to students is part of their jobs, and running a classroom is a core academic dut[y].”[3] Accordingly, current doctrine dictates (and at least one court has concluded)[4] that the school can discipline the teacher without free speech consequence.

Nor does a potential exception for academic speech apply. The Garcetti Court avoided deciding whether its new standard reached the academic setting, noting (correctly) that there may be good reason for additional protection for “academic scholarship or classroom instruction.” But by “classroom instruction,” the Supreme Court more likely had in mind the need for freedom in academic endeavors such as developing a class syllabus, choosing course materials, and structuring classroom activities as opposed to abiding by anti-discrimination policies when calling on students.

I suspect Norton would not view the objecting schoolteachers pronoun use as government speech, but I am not certain about her analysis of this first-stage question. Under her transparency principle, she would have to agree that the school board hired teachers to deliver a transparently governmental viewpoint. Even if school teachers do impart a state approved message on the subjects they teach, that fact may not be sufficiently transparent. On the other hand, it may be more transparent that teachers are the government’s representatives in the classroom, and how they treat students represents what the government does or does not allow, whether it be paddling or misgendering them. In any event, even if the teachers do not lose their free speech claim because their speech is government speech, they would nevertheless lose under the Pickering-Connick balancing test Norton favors, which awards a free speech victory only if the speech is on a matter of public concern and does not unduly disrupt the workplace. (p. 65) A teacher’s choice of pronouns likely satisfies neither requirement.

“Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community.”[5] While the topic of gender identity is without doubt of public concern, at issue is not a discussion of it but a refusal to use a student’s appropriate pronouns in music class or French class. This personal exercise of religion, however meaningful it might be to the individual religious observer, it is not necessarily a contribution to the marketplace of ideas, at least according to one court: “The act of referring to a particular student by a particular name does not contribute to the broader public debate on transgender issues. Instead, choosing the name to call a student constituted a private interaction. . . .”[6] Regardless, as discussed in more detail in Part II, a teacher’s failure to abide by anti-discrimination rules is highly disruptive of the school’s mission because of its negative impact on the education of transgender students.

[A final question is whether the teacher has a First Amendment religious liberty claim even if not a First Amendment free speech one. The short answer is no. Neutral laws of general applicability do not violate the Free Exercise Clause, and anti-discrimination laws meet that criteria. Certainly a school-wide anti-discrimination policy neither singles out religion for disfavor nor applies selectively. The long answer would explore whether speech that is considered the government’s for free speech purposes should also be considered the government’s for free exercise purposes. But that’s a discussion for another day. ]

In sum, the answer to the first question is, yes, the school may discipline the teacher. This is true under existing doctrine, where the speech would be governmental. It is also true if deciding the first-stage question using Norton’s transparency principle, either because its requirements are met or because the balancing test requirements were not.

II. A Second Order Question: Does Misgendering Violate the Equal Protection Clause?

If the teacher’s speech is the government’s—as it probably is under current doctrine despite Norton’s reservations about that doctrine—then it must abide by the Equal Protection Clause. The Equal Protection Clause bars the state from discriminating on the basis of gender, which logically should encompass gender identity. (The Supreme Court will decide this term whether “sex” includes gender identity under Title VII of the Civil Rights Act.) Whether speech on its own may violate the Equal Protection Clause at all depends on the theory of that clause one adopts. (pp. 104-06) Norton uses three different lenses to evaluate this second-stage question. Through each one, the government’s refusal to correctly gender likely violates the Equal Protection Clause.

First, Norton argues, government speech alone might violate the Equal Protection Clause if it “changes its targets’ choices or opportunities to their disadvantage.” (p.106) This lens focuses on concrete harms. (p. 106) One way government speech may materially harm targets is “when it forces its targets to endure miserable environments because of their race, gender, or other class status.” (p. 110) Another is when it “deters its targets from pursuing certain opportunities as effectively as an outright command.” (p. 111). Norton emphasizes that the deciding factor is causality (p.107), and that “th[e]se causal questions – however difficult – are neither new or uncommon.” (p. 110)

Arguably a teacher’s refuses to address transgender students by their proper pronouns causes both harms. To start, the student is likely to experience the environment as hostile. Setting aside the question of whether this itself qualifies as a concrete harm, such hostility can impact mental health. Transgender students have a distressingly high risk of suicide, with American Academy of Pediatrics studies finding that between one third and one half of transgender students attempt suicide at some point in their life. At the same time, studies also establish the importance of affirming gender identity, finding that “[f]or each additional context (i.e., at home, school, work, or with friends) in which a transgender youth’s chosen name is used, their risk of suicidal behavior is reduced by more than half.” One student’s tweet captures how meaningful this recognition can be: “my dead name was scratched out on my high school id and a teacher noticed and got me a new one for free with my actual name like it was no big deal i would die for that teacher.” Thus, a teacher’s refusal to affirm a transgender student’s identity has material consequences.

In addition, the student’s education may suffer as a result. As the director of GLSEN noted, “When [students] don’t feel affirmed or don’t feel safe, then they can’t learn.” Classroom participation is an essential component of learning. Yet transgender students who feel unwelcome will be deterred from fully joining in. Indeed, the transgender student of one educator who refused to address her appropriately admitted that she “dreaded participating in plaintiff’s class.”[7] Consequently, the government actor’s speech changed the student’s educational opportunities.

Second, according to Norton’s taxonomy, government speech may violate the Equal Protection Clause if it “inflict[s] expressive, or dignitary, harm upon its targets by communicating hostility or disrespect for its targets.” (p. 106) Here, no material harm need be proved; it is enough that the government conveys a message of exclusion, inferiority, or second-class citizenship due to class status. (pp.112-13) Through this lens, the question becomes whether a teacher’s refusal to use appropriate gender pronouns expresses this message.

Again, the answer tends towards the affirmative: It is difficult to imagine a more fundamental gesture of disrespect than refusing to address a person as they wish to be addressed. This expressive harm is particularly noteworthy when a professor uses honorifics (Mr. or Ms., sir or ma’am) for all other students except the sole transgender student in his class, as was the case in Meriwether.[8] This disrespect is not simply impolite or impolitic, it is a negation of identity and “contributes to robbing transgender [students] of the power to express their own sense of self.” As one transgender writer explains, “When someone states their pronouns (he, she, ze, they, etc), they are asking for your respect. And when you choose not to use these pronouns . . . you are . . . invalidating someone’s identity.” In short, as another transgender writer sums up, “casual misgendering is the most efficient means that you possess to dehumanize me.”

Third, an Equal Protection Clause violation might arise if the government’s speech is “motivated by animus or other discriminatory intent.” (p. 106) Norton describes laws declared unconstitutional because they were motivated by a “bare desire to harm” or could not be explained by anything other than animus, such as a state constitutional amendment that precluded municipal governments from banning discrimination on the basis of sexual orientation. (pp. 116-17). If the government cannot act with these motives, Norton suggests, then perhaps the government should not be able to speak with these motives either (pp. 117-18). Often the challenge in these cases is pinpointing the government’s motive, a difficult task if the motive must be inferred or if multiple decisionmakers are involved. (p.119) In the case of a public schoolteacher refusing to use proper pronouns, however, the motive is stated unequivocally: to acknowledge their students’ transgender identities is a lie and a sin. The challenge is how to characterize that motive.

The teachers would no doubt argue that their speech is not motivated by animus or an intent to discriminate but by an intent to follow their religious beliefs. Of course, these two motivations are not mutually exclusive. The idea that a religious belief is never motivated by animus because it is religious cannot hold. Religion does not magically wash away discriminatory intent. If you hold and express a discriminatory belief (e.g., African-Americans are inferior), it is discriminatory regardless of whether the source of that belief is religious or nonreligious. In this case, the refusal to use pronouns is motivated by a negative view of transness. Indeed, the teachers explicitly state that it is “sinful” to acknowledge transgender identity because it is a sin to reject the fixed sex God assigned at conception. Even setting aside the language of sin, the objecting teachers argue that transgender students’ assertions about their identity is a lie so egregious that it would violates their “Biblical injunctions against dishonesty, lying and effeminacy.” This is not a friendly or even neutral attitude that is animating their refusal. It is a hostile one. Especially if, as Norton argues, “moral disapproval . . . is a type of animus.” (p.125)

Thus, there is a strong case that the government’s speech—the public schoolteacher’s speech—violates the Equal Protection under each of Norton’s proposed lens. Norton does note that courts have not necessarily embraced each approach, and that the parameters of each remains in dispute. For example, Norton points out that “[t]he government’s speech violates the Equal Protection Clause when it results in certain discriminatory effects, but some will be quicker than others to find those effects.” (p.126). Nonetheless, Norton has provided a careful and useful framework to examine this second-order question. Applying it leads to the conclusion that a public school not only may discipline a teacher who refuses to address transgender students with their appropriate pronouns, but its failure to do so runs the risk of violating the Equal Protection Clause.

Caroline Mala Corbin is Professor of Law & Dean’s Distinguished Scholar at the University of Miami School of Law. You can reach her by e-mail at ccorbin at law.miami.edu