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
x
[1] Kluge v. Brownsburg Comm.
Sch. Corp., 2020 WL 95061, at *2 (S.D. Ind. Jan. 8, 2020).
[2] See, e.g., Meriwether v.
Trustees of Shawnee State Univ., 2019 WL 4222598, at *1 (S.D. Ohio, Sept. 5,
2019).
[3] Kluge, 2020 WL 95061, at
*7 (quoting Wozniak v. Adesida, 932 F.3d 1008, 1010 (7th Cir. 2019).
[4] Meriwether, 2019 WL
4222598, at *11.
[5] Lane v. Franks, 134 S. Ct.
2369, 2380 (2014).
[6] Kluge, 2020 WL 95061, at
*7.
[7] Meriwether v. Trustees of
Shawnee St. Univ., 2019 WL 2052110, at *6 (S.D. Ohio May 9, 2019).
[8] Meriwether, 2019 WL
4222598, at *12.